GOVERNING CHESAPEAKE WATERS
History of Water Quality Controls
on Chesapeake Bay, 1607-1972
by
John Capper
Garrett Power
Frank R. Shivers, Jr.
Maryland Environmental Trust
501 St. Paul Place, Suite 1401
Baltimore, Maryland 21202
X003226010
Project Officer
William Ai Cook
Chesapeake. Bay Program
20>83 West Street, Suite 5G
Annapolis, Maryland 21401
CHESAPEAKE BAY PROGRAM
S. ENVIRONMENTAL PROTECTION AGENCY
ANNAPOLIS, MARYLAND 21401
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DISCLAIMER
This report has been reviewed by the Chesapeake Bay Pro-
gram, U. S. Environmental Protection Agency, and approved for
publication. Approval does not signify that the contents
necessarily reflect the views and policies of the U. S. En-
vironmental Protection Agency, nor does mention of trade names
or commercial products constitute endorsement or recommendation
for use.
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FOREWORD
The Chesapeake Bay has been called the most-studied and
best understood estuary in the United States. Yet is is
practically unexamined in the areas of the social sciences and
the humanities. While tens of millions of dollars have been
spent on producing the thousands of studies that examine the
physical, biological, chemical, and engineering aspects of the
Bay, little attention (and no money) has been given to under-
standing the political, cultural, and economic character of Bay
governance. The many planning documents, of which the Corps of
Engineers' Chesapeake Bay Study is the largest, are general
compilations of information and issues rather than original
pieces of research.
As a result, the present study has had the benefit of
little scholarship to point the way. For example, there is no-
where even a simple compilation or listing of the state agencies
that have been involved with the Bay over time. The records of
what government has been doing with the Bay, written as they are
in varying documents, and scattered in various libraries in both
Virginia and Maryland, have not found their way into the numer-
ous bibliographies that have been assembled for the Bay. And
the relationship of the governments of both states to the Bay
is imperfectly documented. In Virginia, the State Water Control
Board did not produce annual reports until 1972, the cutoff date
for this study. In Maryland, the reports of water quality
agencies tend to be perfunctory and repetitive, and give little
indication of the real issues facing the agencies over the years.
The researcher is forced to approach his material as though he
were an archeologist, finding a few shards here, a few bone
fragments there. Piecing together a coherent story out of the
fragments requires a certain amount of logic, a workable hy-
pothesis about the overall nature of the creature to be des-
cribed, and some theories about how the evidence fits together.
This report has relied primarily on written sources. Those
proving most fruitful have been the annual reports of various
state agencies, the occasional reports of study commissions and
blue ribbon panels, and the codes, statutes, and case law of the
two states. Agency files proved difficult to use because they
are boxed and stored, full of irrelevant material, unorganized,
and uncataloged.
Interviews with persons familiar with Bay issues have given
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a general orientation to a particular period, and suggestions of
topics or sources for further research. We have not attempted
to get detailed information of specific events through such
interviews. The written record, we feel, stands on its own.
Use has also been made of the abundant collections of news-
paper files in libraries. While newspaper articles may have
questionable accuracy, they identify key issues and place them
definitively in time. Without them, numerous controversies,
left only to the official archivists, would go unrecorded. In
this study, information from newspapers gives a sample of
issues, and shows the broad trends in water quality awareness.
Another useful sources has been feature articles in maga-
zines and newspapers. These are particularly useful, because
they both reflect, and partially shape, the public attitudes
toward the Bay. Changes in these attitudes provide data used
throughout the report.
Last, the personal experience of John Capper has been drawn
on. Mr. Capper worked as a planner for the Department of Chesa-
peake Bay Affairs of the State of Maryland from 1968 through
1972.
The authors hope that this report has something to say
that has been inexplicably neglected in the public debate over
the Bay. After all, the issue of the quality of Chesapeake Bay
is a matter not primarily of science but of public opinion,
and how that opinion is expressed in the political process.
Therefore, if one is concerned about the Bay, one will attempt
to understand the human-political side of the Bay system as
well as the physical-biological side. This does not mean that
scientists should be involved less in research on the Bay. It
simply suggests that economists, political scientists, his-
torians, lawyers, and philosophers, should be involved more.
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CONTENTS
DISCLAIMER ii
FOREWORD iii
ACKNOWLEDGEMENTS vi
I. INTRODUCTION 1
Section I Notes 5
II. THE NATURE OF THE BAY 6
Section II Notes 12
III. THE FIRST THREE HUNDRED YEARS 13
Section III Notes 35
IV. THE TURN OF THE CENTURY 50
Section IV Notes 56
V. 1900-1945 58
Section V Notes 86
VI. 1945-1960 91
Section VI Notes 98
VII. 1960-1972 100
Section VII Notes 126
VIII. SUMMARY AND CONCLUSIONS 131
Section VIII Notes 137
SELECTED BIBLIOGRAPHY 138
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ACKNOWLEDGEMENTS
Many people contributed their time and ideas to this study.
Among those making a special contribution are:
William. A. Cook, the EPA Project Officer, who made
valuable editorial suggestions.
Marian Dillon, an attorney, who assisted in the
legal research.
David Miller, of the Maryland Environmental Trust,
who patiently administered the Project.
Lu Ann Young, who typed, proofread, and made
editorial suggestions on the final manuscript.
THE AUTHORS
John Capper is a Resource Planner who worked for
the Maryland Department of Natural Resources
in the early 1970's.
Garrett Power is a Professor of Law at the University
of Maryland School of Law, and author of Chesapeake
Bay in Legal Perspective (1970).
Frank R. Shivers, Jr. is a teacher and author of
Bolton Hill: Baltimore Classic (1978).
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SECTION I
INTRODUCTION
In 1607, the first English colonists in the Chesapeake Bay
region drew their drinking water from the often-brackish James
River estuary, which ebbed and flowed past the shores of the
swampy island that was to be called Jamestown. In doing so, they
exposed themselves to disease-carrying bacteria from their own
wastes (according to a theory of a twentieth century historian)
and subjected themselves to gradual salt poisoning from the
brackish water.1 Those who sickened and died may have been the
first recorded victims of water pollution in the Bay.
Three hundred and sixty-five years later, in 19 72, tropical
storm Agnes swept through the region, dumping record-breaking
quantities of rain throughout the 65,000 square mile basin that
drains into the Bay. The resulting floods stripped wastes from
throughout the region and dumped them into the Bay, leaving it a
vast mess-roil, awash with bacteria, loaded with massive quanti-
ties of organic matter, clogged with debris ranging from plastic
bottles to houses, and freshened past the level of tolerance of
saltwater-demanding plants and animals. In every sense of the
word, the Bay was grossly polluted. It had become foul, noxious,
dirty, and corrupted, the worst condition in its recorded history.2
These two conditions, that of 1607, subtle and speculative,
and the one in 1972, blatant and documented, serve as an appro-
priate beginning and end for this study, a historical survey of
water quality issues on Chesapeake Bay. They bracket the period
of this study from 1607 and European settlement to 1972 and
modern megapolis. They reflect the range of issues from the
microscopic and localized, to the obvious and Bay-wide. They
illustrate that water quality, although affected by human ac-
tivity, is to a large degree independent of that activity. And
they reflect that conditions of water quality may require sophis-
ticated tools of science to detect what may be obvious to the
untrained observer.
Between these two events, the people of the region have
taken a great interest in the Chesapeake Bay. This report traces
the development and evolution of their governments' attention.
The focus is on human institutions, ideas, and attitudes, rather
than on the physical, chemical, and biological attributes. This
report examines: how the ideas about water quality have been
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formed, changed, and communicated; how government has organized
itself to the task of studying and influencing the quality of the
Bay; and how perceptions of the Bay have brought about change in
the way it is used.
Our thesis comes from the view that, while it is important
to describe the conditions of the Bay as accurately as human
science and technology allow, it is just as important to under-
stand how the concept of water quality has operated in the
political process. This report, then, is a modest attempt to
broaden the debate about the Bay and its future, to include an
understanding about how we and our predecessors have shaped and
used our governments to have an influence on the quality of Bay
water.
Now for definition of terms: government is broadly inter-
preted to include any activity or viewpoint sanctioned by govern-
ment bodies. It includes actions by courts, legislatures and
administrative agencies local, state, and national. During
the 400 year recorded history of the Bay there have been shifts
in the locus of governmental power. In the 17th and 18th cen-
turies, the courts were the dominant law-making bodies. By
resolving a number of ad hoc conflicts, they created what came to
be viewed as a body of common law. Then, during the 19th century,
the Maryland and Virginia legislatures attempted to address some
problems of water quality. They enacted laws designed to resolve
specific conflicts over fisheries and navigation. Early in the
20th century there is talk of managing water quality by adminis-
trative agencies. Management may be a misnomer. Agencies do not
manage the Bay in any generally accepted sense of the word.
Although human influence on the Bay has been considerable (both
intentional and unintentional), the Bay is still.to a large
extent beyond the ability of our technology to regulate or con-
trol. Nonetheless, an "administrative state" has evolved in
which public administrators influence the Bay to a greater extent
than courts or legislatures.
Our definition of the Chesapeake Bay is expansive. In a
physical sense it is to include the whole estuary the semi-
enclosed coastal body of water that has a free connection with
the open sea and within which sea water is measurably diluted
by fresh water derived from land drainage. So defined, the Bay
includes long stretches of the Potomac, Rappahannock, York, and
James, as well as hundreds of other rivers, creeks, bays, and
sounds. The nomenclature of the Bay region is confusing. Some
rivers are not fresh and flowing but subestuaries (e.g., Severn
River); other rivers flow to the fall line and then become
estuarine (e.g., Potomac River). Likewise, some "creeks" are
tidal and others not. The words "bay" and "sound" are also
loosely applied. Pocomoke Sound fits the conventional definition
of a "bay" while Chincoteague Bay (on the ocean) is perhaps more
appropriately a "sound." This study avoids semantic confusion
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by looking to the estuary regardless of the popular name.3
This study also looks beyond the estuary. Because the
quality of the Bay is the result of all physical inputs, we con-
sider activities in the entire Chesapeake Bay watershed, which
includes six states and reaches as far from the Bay as mid-New
York State.
A historical perspective does give meaning to the concept of
water quality in Chesapeake Bay. For roughly the first two hun-
dred years covered by this report, the only water quality issues
were siltation, the condition of the fishery, and public health.
By the 1820s, concerns were growing about the declining stocks of
shad and herring. These declines were attributed in part to the
effects of siltation, sedimentation, temperature changes due to
land clearing, and the mechanical action of ships' wakes, as well
as the blockage of streams by dams and raceways.
By the middle of the 19th century, people also recognized
that fish avoided areas that were fouled by wastes, such as saw-
dust, canning wastes, and discharges from slaughterhouses and
tanneries. The present usage of the word "pollution" then came
into being. Toward the end of the century, fisheries scientists
were making the first formal studies of the relation of fish life
cycles and productivity to environmental factors, both natural and
man-caused. By the 20th century, the germ theory of diseases had
added the concept of waterborne disease bacteria to the growing
science of water quality of the Bay.
Once it was established that oysters were carriers of
diseases originating from human sewage, oyster sanitation then
became the most influential water quality concern. This connec-
tion was made in the 1890's, but had its first impact on the Bay
shortly after 1900. Also about this time, fishermen began
complaining about the effects of wastes from food processing
plants. Thus began the concern for industrial wastes which, for
the first half of the century, continued to come primarily from
food-processing industries and' other small producers of organic
wastes.
By the end of World War I, oil from ships using the Bay was
seen by fisheries officials and bathing beach operators as the
major water quality problem, and in the mid-1920's, oyster sani-
tation again became a major concern when several epidemics blamed
on bad oysters brought a wide-scale closure of bars. Growth of
municipal sewerage and industry, by the end of World War II,
created conditions that made pollution in both tidal and non-tidal
streams a major concern.
In the 1950's, scientists began to investigate more subtle
water quality factors, such as the effects of insecticide, ferti-
lizers, and heavy metals on marine organisms. This investigation
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ushered in the era of concern for exotic discharges to the system,
which remains a predominant concern today. By about 1960, a new
set of concerns was added to the list, including thermal dis-
charges, over-enrichment# general land run-off, and freshwater
diversions. Also in the 1960's, the concerns expanded from those
of specific conditions and pollutants, to a general worry about
the overall ecological health of the Bay the concept of water
quality shifted from pollution to ecology.
This study takes a historical look at the quality of Chesa-
peake Bay waters and the measures which governments have taken to
influence that quality. Because most conflicts involve the issue
of water quality, this study in some respects is a history of Bay
uses in general. The organizing principle and point of view,
however, is the relation of various uses to water quality, and the
way in which government has intervened to have some effect on that
quality.
It proceeds in three steps. First comes a restatement of
the geographical, physical, and biological nature of the Bay
system. Then comes the history itself. The study period is
divided into eras: Colonial times to the turn of the Century;
1900 to World War II; World War II to 1960; 1960 to 1972. Within
each era the social, economic, and political scene is set, water
quality issues are restated, and the responses of governments
reviewed. Following the chronology comes summary and conclusions.
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Section I Notes
1. Carville V. Earle, "Environment, Disease and Mortality in
Early Virginia," The Chesapeake in the Seventeenth Century,
Thad W. Tate and David Ammorman, eds., Chapel Hill:
University of North Carolina Press, 1979, p. 96.
2. Chesapeake Research Consortium, The Effects of Tropical Storm
Agnes on the Chesapeake Bay System, Baltimore: The Johns
Hopkins University Press, 1976.
3. In 1964, the Maryland Attorney General ruled that a statute
when referring to "rivers, creeks or branches" did not apply
to bays; this opinion was subsequently overruled by the
Maryland Court of Appeals. Board of Public Works' v. Larmar
Corp., Vol. 262 Maryland Reports, p. 24, Vol. 277 Atlantic
Reporter 2d, p. 427 (1971).
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SECTION II
THE NATURE OF THE BAY
A. Describing the Bay
Virtually all written documents about Chesapeake Bay,
whether technical or popular, begin with a description of the Bay
and the region. Because these descriptions contribute to the
composite public perception of the Bay, we would like to make
some general observations about these Bay descriptions before
presenting our own.
In general, descriptions of the Bay show the lack of a
single authoritative source of information about the Bay, its
resources, and the region that surrounds it. Those descriptions
which do exist are sometimes inaccurate and present problems of
definition and interpretation. It is beyond the scope of this
report to describe or analyze these descriptive difficulties in
detail, but several examples will illustrate these problems and
show how they relate to the development of perceptions discussed
in this study.
One might expect that physical dimensions of the Bay, which
are for the most part constant and accessible to measurement,
would be readily available and accurate. Such is not the case.
Anyone examining the literature of the Bay, whether recent or
old, technical or popular, will find wide discrepancies in the
various dimensions. Length, for example, is one such dimension.
While one would expect to find some variation because there is
some judgment involved in such matters as placing the starting
and ending points (e.g., where does the Bay begin and the ocean
end, for the mouth; and the Bay begin and the Susquehanna end,
for the head), and how to deal with the curves of the Bay, none-
theless these considerations do not account for the wide
variation.
In fact, the Bay length has been authoritatively reported
to be approximately 190 miles long,l using a method of measure-
ment described in the report. We came very close to duplicating
this figure using a 1:200,000 scale chart and a map wheel. Yet,
in the Corps of Engineers massive Chesapeake Bay study, the Bay
is reported to be over 200 miles long,2 and in 1979, two widely
published Bay authorities coauthored a paper in which the Bay is
listed as 168 miles (271 kilometers), which is even less than the
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straight-line distance between the lines of latitude of the mouth
and head of the Bay (37 degrees north to 39 degrees 32 minutes,
or 152 nautical miles = 175 statute miles).^
Hence, while there are sources of accurate information, it
is difficult for all but the most diligent reader to sort out the
good from the bad. Because many writers of descriptions draw on
previously published ones without question of citation, old
errors are perpetuated.
Problems of definition complicate efforts to relate census
data to the Bay. Descriptions which give population figures,
and at least imply that there is a direct relation between popu-
lation and the stresses or pressures put on the Bay, pose two
questions. First, there is always a question of how to define
the Bay region. It might range from a narrow strip of land
around the Bay to the entire watershed. Second, and more per-
plexing, is the question of the relation of human population to
the Bay. Impact on the Bay is going to differ, depending on
location, method of sewage disposal, predominant land use, and
employment. It might be that 5000 watchmakers living in metro-
politan apartments would have less impact on the Bay than one
dairy farmer living on the shores of an oyster-producing creek.
Hence, population figures may lack the analysis necessary to make
them relevant to Bay issues.
Perhaps no numbers have more significance to Bay water
quality issues than fisheries statistics. Much of the political
energy that drives the Bay system is generated over public con-
cern for the state of the fishery. The problems associated with
the collection of these numbers are legion. They include:
methods of collecting information has changed markedly over the
years; methods vary between the states; sport catches are
unknown; harvests are affected by economic and cultural forces
(low prices and war, for example) having nothing to do with the
size of the fish population; fishermen have been suspected of
under-reporting catch to avoid taxes and over-reporting to
inflate the importance of the fishery. Moreover, fluctuations
in fish populations, and therefore catch, are subject to wide
variations due to unknown or poorly understood factors. These
factors could be natural or of human origin.
Serious study has gone into the examination and analysis of
fisheries statistics, and there is continuing advance in their
utility as management tools.4 But over the historical period
covered by this report, they have tended to be used uncritically,
particularly when inferences are drawn from them about the
effect of man's activities on the water quality of the Bay.
B. Characteristics of the Bay
Forewarned by our own criticism, we now undertake our
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description of Chesapeake Bay. It is intended to be relevant to
the specific topic of study contained in this report man's
effect on water quality over time.
Geographic Characteristics
It is a common practice to compare Chesapeake Bay to other
large estuaries or lakes. In doing so, one of its striking
features is that it has a very long shoreline in relation to its
overall length or size. Taking the previously discussed length
figure of 190 miles and a currently prevalent figure for shore-
line of about 8,000 miles, the Bay has a shoreline to length
ratio of over 40 to one. Lake Ontario, the smallest of the Great
Lakes, has a ratio of about 2.5 to one. For Chesapeake Bay,
there are roughly two miles of shoreline for every square mile
of surface area; for Ontario, there are about 18 square miles
for each mile of shoreline.
These ratios point to at least three important aspects of
the Bay. First, they are another way of expressing the extreme
"branchiness" of the Bay, which means that the Bay is divided
into a large number of separate components, the seemingly
numberless bays, creeks, and guts that so frustrated colonial
land travellers, but so fascinate the contemporary "gunkholer."
Second, the extensive shoreline allows for a high level of
human access to the Bay, both to use and enjoy it, and to affect
it by his landward activities. Third, the land-water edge is an
area of relatively high biological activity, and probably
contributes materially to the productivity and biological
variety of the Bay.
Another striking characteristic is its shallowness. This
is apparent to the visitor of the Bay hydrologic model in
Mattapeake, Maryland. There, at a horizontal scale of 1,000 to
1, is a concrete Bay in miniature. The Bay itself is over 1,500
feet long. Since it is enclosed under a single roof, there is
a sense of vastness about the place. Yet, the deepest part of
the Bay is only 18" deep, and most of the area under water is
3" or less deep. It must then be remembered that the vertical
scale is only 1 to 100. Thus, if'the model were at the same
scale in both directions, the deepest part would be about two
inches, and most of the "Bay" would be covered in a film of
water scarcely worthy of being called wet. Again, a comparison
to Lake Ontario is in order. There, a similar scale model would
have a depth of 8 feet at its deepest, and a large area over 5
feet. It would make a fine swimming pool, whereas the Bay model
isn't even deep enough for a toddler to wade in. The Bay proper,
with its 18 trillion gallons of water, is a veritable drop in the
oceanic bucket. Lake Ontario contains approximately 40 times
as much water. If dilution is the solution for pollution,
Chesapeake Bay has a relatively limited capacity for diluting
pollutants.
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Finally, it is popular to speak of the Bay as a single
system. Yet, in a profoundly important way, it is divisible into
many separate subsystems (in a way that many other large bodies
of water are not). The rate at which water is exchanged or
flushed from a sub-estuary to the estuary is often small or
negligible. One effect of this geographic feature has been to
make local conditions more acute than they might otherwise have
been at the point of discharge. For example, a sewage treatment
plant in Baltimore, Maryland has fundamentally altered the
quality of Back River. On the other hand, effects from these
wastes are more isolated and contained than they would have been
if discharged into the main stem of the Bay.
Demographic Characteristics
We have already spoken of the difficulty of relating raw
population figures in any direct way to the condition of the Bay.
However, several potentially important generalizations are
possible. First, municipal-industrial influences, whatever they
might be, are concentrated in a relatively small area in and
around the cities of Baltimore, Washington, Richmond, and the
municipal complex of Hampton Roads, which includes Norfolk among
a number of communities. The remainder of the Bay region is
relatively lightly populated. Second, these areas have all
experienced rapid growth since World War II, and will probably
continue to do so. Land use changes within the standard metro-
politan statistical areas are substantially from forested and
agricultural to residential-commercial, with attendant effects
on stream runoff and waste loads.
Third, the region as a whole has substantially less heavy-
industry than comparable regions in the East or Mid-west.5 Em-
ployment in government and service sectors, including military,
is higher than the regional average. Fourth, even though the
region has the image of being an important seafood producer, and
fishing provides an important source of employment in some of
the smaller tidewater counties of both states, from a regional
standpoint the contribution of the fisheries industry to the
economy is insignificant.6
Physical-Chemical Characteristics
The major physical and chemical features of the Bay have
been succinctly and clearly stated by Dr. Donald Pritchard.^
Several important aspects might be usefully highlighted for the
layman. First, waters in the Bay and its principal tributaries
are in constant motion, gravity acting differentially on the
denser salt water being overridden by the lighter fresh water
entering from the rivers. This two layer wedge effect accounts
for the presence of sea water (much diluted) near the heads of
the,Bay and its tributaries, and the eventual exit of river water
to the sea. This basic circulation is much affected by
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variations in river flow, and combinations of winds and atmos-
pheric pressure changes that can drive very large quantities of
water into or out of the Bay. Second, the circulation of many
of the smaller arms of the Bay is relatively sluggish, because
they do not have a substantial freshwater inflow to establish
their own flow system. Their circulation is much affected by
the differences in salinities between their lower reaches and
that of the Bay. At certain times of the year they can undergo
a rapid flushing, because of strong differences between their
salinity and that of the Bay. At other times there may be very
little exchange. In some respects, then, for substantial
periods of the year, these smaller bodies of water are essen-
tially separate from the Bay. This applies as well to the
smaller branches of the principal tributaries.
Third, the fate of a constituent added to the waters of
the Bay is often a complex one. Silt from land erosion may
interact with bacteria from a farm feedlot; nutrients from a
sewage treatment plant might combine chemically with the wastes
from an industry. A toxic chemical might be buried harmlessly
in bottom sediments, or it might be physically and biologically
transported throughout the Bay.
Fourth, alterations can have a considerable impact on the
physical and chemical oceanography of the Bay. A system of dams
might substantially alter the flow regimen of a river entering
the Bay. A navigation channel might affect the exchange rate
between a tributary and the main Bay. Industrial and municipal
wastes can greatly increase the concentrations of naturally
occurring substances, or add new and potentially harmful ones.
On the other hand, the natural forces affecting the Bay, and
their range of variation, are enormous when compared in general
to the scale of effects that are influenced or controlled by
man. It is important to keep these in perspective when reviewing
the history of man's concern for his impact on the quality of
the Bay.
Biological Characteristics
A fitting companion to Dr. Pritchard's paper just cited,
and bound next to it, is Dr. L. Eugene Cronin's description of
the biology of the Bay.8 Several attributes deserve prominence
in this study. First, as the Bay is physically and chemically
a highly variable environment, so are the biological populations
that fill the various Bay niches. Populations and reproductive
success of numerous important species, including the oyster, the
crab, and the striped bass, are subject to natural cycles that
are as yet only partly understood. Understanding of these
natural variations is confounded by the problem of assessing the
influence of man, either through his harvests or through his
indirect effects on water quality.
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Second, the animals of the Bay combine permanent residents,
regular and Bay-dependent visitors, occasional visitors, some-
times in great abundance, and strays. The biological openness
of the system is one of its prominent features.
Third, the biology of the Bay combines toughness and
resiliency to change on the one hand, and fragility and vulnera-
bility on the other, the former because the residents of the Bay
are adapted to the great natural variability, and the latter
because of the relatively short food chains in the Bay.
This non-numerical description of the characteristics of
the Bay has stressed openness, variability, and complexity. We
feel that they are the appropriate concepts to present as a pre-
lude to the substance of our historical study. The Bay is also
open in a political and economic sense. Man's use of the Bay is
very much affected by events taking place outside the region.
The recent buildup of demand for coal shipping facilities, a
result of the world energy market, is a case in point. The
variability of the Bay's quality produces popular misunderstan-
dings. A large fish kill (or more appropriately a fish die-off),
is not untypically taken as prima facie evidence of pollution.
To argue without other evidence that there is a direct causal
link, however, is to commit the fallacy of post hoc ergo propter
hoc (after this therefore because of this). This line of argu-
ment, regardless of what some ancient Greek logicians might
think of it, has been often employed on the Chesapeake. And
recognition of its complexity has raised the public conscious-
ness that the Bay is a single ecological unit and has prompted
the rallying cry "Save the Bay."
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Section II Notes
1. Cronin, W. B., Volumetric, Areal and Tidal Statistics of the
Chesapeake Bay Estuary and its Tributaries. Chesapeake Bay
Institute, The Johns Hopkins University. Special Report 20,
1971. Despite the definitive nature of this report, numerous
Bay authors have continued to use other sources for Bay
dimensions, thereby perpetuating old errors.
2. Corps of Engineers, Baltimore District, Existing Conditions
Report, Appendix C, Processes and Resources, C-VI-2. This
report is the result of multiple authorship spanning years
of collection and compilation, actually contains several
competing figures for various measurements for the Bay.
3. A. J. Lippson and R. L. Lippson, The Condition of Chesapeake
Bay and Assessment of its Present State and its Future.
Presented to the Marine Environmental Quality Committee.
International Council for the Exploration of the Sea,
Warsaw, Poland. Mimeo. 1979, p. 1.
4. A particularly interesting discussion and analysis is con-
tained in A. Y. Kuo, et al., Chesapeake Bay: A Study of
Present and Future Water Quality and its Ecological Effects.
Gloucester Pt., Virginia Institute of Marine Science, 1975,
pp. 1 f f.
5. Baltimore District, Corps of Engineers, Chesapeake Bay
Future Conditions Report - Summary, p. 19.
6. Ibid., p. 23.
7. Proceedings of the Governor's Conference on Chesapeake Bay,
Donald W. Pritchard, "Chemical and Physical Oceanography of
the Bay, II, 49 ff., Annapolis, 1968.
8. Ibid., L. Eugene Cronin, "The Biology of the Chesapeake Bay,"
77 ff.
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SECTION III
THE FIRST THREE HUNDRED YEARS
A. Background
The first European record of the Chesapeake described it as
great and beautiful.1 The year was 1572, and the writer was a
Spanish priest, Brother Carrera. Of this bay he noted that "It
is called the Bay of the Mother of God, and in it there are many
deepwater ports, each better than the next." The gleam of
commerce in Carrera's eye produced fateful consequences.2
Newcomers to the New World arrogantly claimed it by "right
of discovery." In their minds bloomed the image of wealth, of
riches greater than Spain's in Latin America. The chief ex-
ploiter of this dream, Sir Walter Raleigh, hired Richard Hakluyt
to write Discourse on Western Planning in order to convince
Queen Elizabeth and her counsellors to support settlements on a
large scale and with a lot of royal backing. This work pointed
out advantages to the prosperity of the country: "By makinge of
shippes and by preparinge of thinges for the same, by makinge of
cables and cordage, by plantinge of vines and olive trees, and
by makinge of wyne and oyle, by husbandrie, and by thousandes
set on worke."
This visionary book imagined the creation of towns "upon
the mouthes of the greate navigable rivers."3 And Raleigh then
proposed his second settlement in the New World to be estab-
lished on Chesapeake Bay. On January 7, 1587 it was incorpora-
ted by the Governor and the Assistants of the City of Raleigh,
Virginia. Raleigh's propaganda and overtures inspired enthusi-
asm in others, although his own plans came to naught.
The next move towards the Bay seemed better planned. The
Council for Virginia of the London Company spelled out the moves
for the new colonists. Among the instructions, one provided
that colonists must not "plant in a low or moist place because
it will prove unhealthful."4 This advice, unfortunately, the
colonists disobeyed when they chose Jamestown as a site.
Much has been written about the unhappy years after that
choice by the hundred settlers in the spring of 1607. One
historian has conjectured that the colonists poisoned themselves
with salt from the brackish waters and infected themselves with
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pathogens from their own wastes.5 This detective work in public
health may or may not be accurate, but it is certainly the case
that by October of 1608 over one-half of the two hundred-odd
newcomers had died.
After the first winter at Jamestown, Captain John Smith led
a few men in a shallop on a voyage around Chesapeake Bay. The
Bay proved to be a monster. Its winds, rains, mosquitoes, and
Indians tested the man famous for bravery, boastfulness, and
energy. He mapped the Eastern Shore as best he could. But the
complex interweaving of water and land defied him, observant
though he was. Smith Island recalls his visit in its name. On
the western shore he ascended the Potomac a shortways and
recorded on his map what Indians reported of its course beyond
his range. He discovered the Patuxent River and the cliffs of
Calvert, which he called "Richard's Clifts." On the way north
he missed West, Rhode, South, Severn, and Magothy Rivers, but
found the Patapsco. Evidently he penetrated the Inner Harbor of
modern Baltimore and noted the hill we call Federal Hill: "For
the red clay resembling bole Armoniac, we called it [the river]
Bolus.At the head of the Chesapeake Bay he was disappointed
that he failed there to reach the Indies. The year before he
had read instructions from the London Company about choosing
a navigable waterway running well into the country, preferably
in a northwesterly direction, "for that way you shall soonest
find the other sea [that is, the Pacific Ocean]."7
Three years later (1611) the London Company and its settlers
received a gift richer than the gold of the Indies that Smith
sought. It came with an immigrant, John Rolfe, was imported
from the West Indies, and was a plant, tobacco. This plant
flourished in the leafmold-rich soil of Virginia. Within a
decade everyone there was planting and harvesting it.
Back in 1586 Sir Walter Raleigh had received a tobacco pipe
by way of Spain. Shortly afterwards doctors latched onto
tobacco as herba panacea. Other people called it herba santa
or "divine tobacco." The upperclasses of the Old World took it
up. And Virginia could and did feed the habit. With the
news of how much money could be made growing tobacco, the colony
attracted hordes of English, most of them unfit to live on a
frontier.8 Still they came, and by 1640 all the best land on
the James River up 'to the Falls (the site of Richmond) had been
taken up.9
Virginians, however, soon had competition. Although their
Company had received three successive charters from the English
Crown, their boundaries in Virginia must have seemed amorphous
to the King. The terms of the three documents pushed the boun-
daries out to include parts of North Carolina, all of Maryland,
and parts of Pennsylvania. Then, on June 20, 1632, King Charles
I granted to Lord Baltimore the tract of land that Baltimore
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called Maryland. Who could question his absolute right to give
away the same Bay twice?
Here then came a second colony, and one whose settlers,
first arriving on its shore in 1634, sought gold too. They came
to an inlet from the Potomac River, St. Mary's River, and called
the settlement St. Mary's City. That name seems ironical to us
because of its expectation of urban distinction in the tidewater
where no real city spread until 175 years later.10 St. Mary's
City proved to have a better site than Jamestown's, for it stood
above its river and was well supplied with fresh water.
Colonial rules encouraged the founding of port towns. And
they chartered many all around the Bay. They and their mer-
chants clearly hoped for new versions of London and Bristol.H
Their planning concentrated on towns as conduits for the money
that was to flow into public and private coffers. What they got
instead were headaches. The first Bay settlement, Jamestown,
according to ample evidence, "seemed perpetually on the verge of
disintegration."12
Although public policy encouraged urban development, no
town had developed by 1662 in the Virginia colony, a place that
then had about 40,000 population.13 The reason for this failure
lay in the economy of tobacco-growing on far-flung fields of
plantation owners that shipped from riverside docks nearby. No
planter required a town.l4 But English colonial officials,
according to a modern scholar of the tidewater town, "hoped to
see Maryland as well as Virginia grow into the kind of colony
typified by New England with a town-based culture."15 He added
that London never faced up to the geographic and agricultural
realities of the Chesapeake region.1Ū
Chesapeake residents did not need cities then. What they
did need was land, lots of tobacco-growing land. And they
needed waterways to carry the pungent-smelling cargoes abroad.
They found both land and water aplenty. Father White, accom-
panying the first Marylanders, called the Potomac River "the
greatest and the sweetest I have ever seen. The Thames is but
a little finger to it."17 There the settlers made a good
beginning. They avoided the strange fluxes and agues that had
afflicted the Virginians earlier.1° And they enjoyed the abun-
dant game and fish. They learned from the Indians to grow maize
and sweet potatoes. Because the Act of Religious Toleration
admitted Quakers, some of that industrious sect had settled
around the Bay by 1650, particularly to what is now Anne Arundel
County. In 1649, a group of Puritan exiles from Virginia
founded Annapolis (at first called Providence), and that settle-
ment became a port of entry. Thirty-five years later it was
made the seat of royal government, the proprietorship of the
Calverts having been replaced.
15
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But Annapolis did not become much of a town, of course,
although as a colonial capital in the 18th century it had its
pretensions like Williamsburg, second Virginia capital. We have
but to look at population figures. Writing in 1782, Thomas
Jefferson reported that Williamsburg never exceeded a population
of 1800. Annapolis had about the same. Richmond, Virginia's
third capital, unincorporated until 1805, had only 8,000 in
1820, but by that date Baltimore had zoomed ahead of all tide-
water towns (for reasons that we will explore) to 62,000.19
The reason for the small size of the towns rests on
tobacco.20 Back in 1640 half of the English settlers lived in
the Massachusetts Bay Colony. Of the other 15,000, about 8,000
lived in Virginia, and 1,500 in Maryland. Twenty years later
26,000 whites and 950 blacks lived in Virginia, and 7,600 whites
and 75 slaves lived in Maryland. During the next fifty years
the number of slaves increased astronomically, all hands needed
to grow tobacco.
In 1724, an Englishman, the Reverend Hugh James, published,
in his Present State of Virginia, an observation that includes
the State of Maryland as well:
No country is better watered, for the conveniency
of which most houses are built near some landing-
place; so that any thing may be delivered to a
gentleman there from London, Bristol, etc. with
less trouble and cost, than to one living five
miles in the country in England; for you pay no
freight for goods from London, and but little
from Bristol; only the party to whom the goods
belong, is in gratitude engaged to freight
tobacco upon the ship consigned to her owners
in England Thus neither the interest
nor inclinations of the Virginians induce them
to cohabit in towns; so that they are not for-
ward in contributing their assistance towards
the making of particular places, every plantation
affording the owner the provision of a little
market.21
That little market resembled a "company town,"22 with the
head of the company, the planter, then fulfilling many roles
farmer, judge, merchant, doctor, host, and always -- aristo-
cratic lord of the manor in the English mold.23 well to
look at him closely. On him centers economic, social, and poli-
tical history in the tidewater. In him we find influences on
the governing of the uses of the Bay. He served as legislator,
he acted as sheriff, he decided as judge.
' Economically speaking, the planter and his tobacco crops
dominated the Bay region. With 5000 acres and the work of
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slaves, he could afford to live like a lord. (Even fifty acres
of tobacco land supported a family in the 18th century.)24 with
money to live like a lord, the planter did ape the social life
of the English gentleman of status and large estate. And like
that gentleman he could tail his estate to insure keeping the
land in the hands of the few. On his land he built and main-
tained a Great House. With plenty of credit in London, he
bought luxuries to adorn it. He also bought culture. Though
the level must have been superficial at first, the culture of
the tidewater deepened by 1750 to shine in what has been called
the Golden Age of the Bay aristocracy.25
That Golden Age shaped major founding fathers in the
creating of the United States: Washington, Jefferson, Madison,
and Monroe. These men were planters and heirs of the tradition
of the planters in politics. Writing in his classic study The
Americans; The Colonial Experience, Daniel J. Boostin suggests
why modern American democracy may chiefly descend from the
Virginia tobacco aristocracy?
Traditionalism their loyalty to the working
way of ancient England rooted them in time;
localism their loyalty to the habits of their
parish and county and to their friends and
neighbors rooted them in space. The strength
of both these sentiments . . . accounts for much
of what they made of Virginia, and of what
Virginia in the critical early years of the
Republic gave to America.26 The strength of
their traditionalism was before long to be
expressed in the American Revolution in defense
of the rights of Englishmen. The strength of
their localism was expressed in the autonomy of
the parish and in the federal spirit in the
Constitution and in the devotion of States rights.
The fact that their tradition was loosely stated
their model was the life of the English country
gentlemen made their tie to tradition no less
real.27
Boostin asserts that even when commerce went to town,
leadership stayed in the country. But in the 19th century towns
did grow, and the story of the growth of Baltimore, the largest
of them, will illustrate how and why.
Baltimore first made a reputation as a brash town on the
Chesapeake Bay. Other tobacco ports, of course, existed before
the chartering of Baltimore in 1729. This new town spread
across land owned by the great Carroll family and in time
surrounded the plantation house of Charles Carroll the Barrister,
Mount Clare. That mansion, which still stands today, received
guests like Washington and Lafayette in the 18th century.
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Those early guests stopped as others less lordly did be-
cause Baltimore grew up at a crossroad. It happened to be on
the main land route south from Philadelphia. And, like Richmond,
Virginia, it stands on the fall line of its river. Quite early
David Johns built a mill on Jones Falls, then a brawling stream
that debouched into the Inner Harbor. He was joined by English
Quakers named Fell, one of them a ship-builder, who bought land
on deep water (now Fells Point) and inaugurated an industry and
a port. Named for an Irish port, Baltimore received immigrants,
happily. One of them from the north of Ireland, Dr. John
Stevenson, came up with the idea of shipping the good Maryland
flour abroad.2 8 Trade burgeoned.
Still, Baltimore was a city-come-lately among east coast
ports. It had only 5,000 population in 1770 when Philadelphia
ranked as the second largest town in the British empire. No
wonder Congress complained about Baltimore when, in 1776, it
took refuge on Baltimore Street from the capture of Philadelphia
by British troops. The little town's shipyards, nevertheless,
produced sturdy warships for Congress.
After the Revolution the fast schooners of Baltimore
carried its name around the world the Baltimore clipper
and brought wealth and crowds of immigrants. The town's priva-
teers created the "Nest of Pirates" that the British feared
and sought to destroy in the Battle of Baltimore, a climax in
the War of 1812. The citizenry rose as one to rebuff the attack
in September 1814. They also sang about the victory in the song
written by one of them, "The Star-Spangled Banner," and they
named streets after its heroes. To this day, Baltimore remains
the only major American port never occupied by a foreign power.
Clearly the town had guts as well as enterprise. Its
citizens created first the clipper ship and then the Baltimore
& Ohio Railroad. Both helped make the population double every
decade. Chief molders of the city's character appear to have
been businessmen, men of the Venetian stamp,29 as one memoria-
list called them. Shrewd and aggressive, they ruled the world
trade-routes as well as the city. Yet, part of the city's
character yielded to the civilizing waves of gentility and
genius and of women that washed over the town between 1800
and 1860. It makes a town special to have held within its
bounds the first American saint (Mother Seton) as well as
artists of the calibre of Benjamin Henry Latrobe, the architect,
and the Peale family of artists and scientists, and Edgar Allan
Poe.
A less attractive side of the city's character caused
Baltimore to be called Mobtown. At Commerce and Pratt Streets
was spilled the first blood in the Civil War, when a mob
attacked troops from Massachusetts who were rushing to defend
Washington. Baltimore remained divided in sympathy between
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north and south, a price paid for its location. Until the end
of the war, it felt the despot's heel against its windpipe.
This two and one-half century survey of Maryland and Vir-
ginia history reminds us of the significance of the tidewater.
Chesapeake Bay held out false promise as a route to the East,
but settlers followed the disappointed explorers to create a
tobacco aristocracy dispersed along its shores. Later came the
port cities, preeminently Baltimore, which served as a point of
trans-shipment and eventually became diversified mercantile
centers.
Settlers and their successors exploited the waters of the
Bay region. For them the quality of the water was not a problem
but a solution. Besides shipping, waters were used for drinking,
as a sink to dispose of wastes, and as a fishing ground. The
problems arose when these uses came into conflict.
B. Water Supply
The settlers first demanded pure water to drink. Not all
the imported beer and sack could substitute. Planters and
townsmen alike had trouble finding and retaining sources of good
water. As with so much else, we can begin with Captain John
Smith. On the Eastern Shore at one point in their explorations
of the Bay they found only a puddle from which to fill "but
three barricoes .... We digged and searched in many places,
but before two daies were expired, we would have refused two
barricoes of gold for one of that puddle water of Wighcocomoco.
When springs were lacking, the inhabitants dug wells. They
also dug latrines and, later, cesspools. The hilliness of
Richmond and Baltimore permitted good drainage of storm water
and of domestic and industrial wastes up to a point.31 Also,
for years Baltimore's lusty streams rushing through the hills
provided both drinking water and a channel for wastes to enter
tidewater. This mixture of uses inevitably led to trouble.
It led, moreover, to attempts not only to provide a supply,
but also to protect the drinking water in towns. In 1792, for
example, the Insurance Fire Co. of Baltimore was authorized to
sell shares to obtain capital for supplying the town with a
reservoir and with pipes to conduct the water.32 Again, in
1800, the legislature gave that town permission to construct a
water supply system. We must keep in mind that Baltimore's
population was just about doubling every decade after the
American Revolution. By 1809 the town's natural springs were
being encroaches upon by the growth "threatened with des-
truction by other improvements"33 Was the exact statement.
Central Springs on North Calvert Street (the present site of
Mercy Hospital) was incorporated, and soon two others, Cloppe's
in the south of town and Sterret's in the east, were
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incorporated.
Like the water company in New York City (from which evolved
Chase Manhattan Bank), Baltimore's became more intent on other
money-making ventures than on providing streams of clean water.
In 1830 the Baltimore Gazette and Daily Advertiser carried a
report of the Water Committee asserting that that company pro-
vided only for the central section of town. Besides, more than
half the year its color and "consistency" made it unfit for any
use. And sometimes there was no water at all.34
Norfolk fared even less well. From its earliest days
visitors noted that the water was brackish and, some said,
unpalatable. A public spring was located near Main and Church
Streets, but the river itself provided "the place appointed for
the public laying" (appointed by the Norfolk Council). So bad
was the taste of the drinking water from pollution and brackish-
ness that in the summer of 1800 a man who owned a good well on
Briggs1 Point, Johnny Rourke, peddled water from his "tea wagon."
Fifty years later most of the drinking water came from cisterns.
And only after the Civil War did the city begin to tap Lake
Drummond and Deep Creek.35
Authorities took steps to prevent contamination of water
supplies. The word "pollution" appeared in a provision of an
act of the Maryland legislature establishing the Baltimore Water
Company in 1808.36 a fine was imposed on anyone polluting the
Jones Falls, the source of drinking water, between the pumping
house and the mill.37 This stream evoked plenty of controversy
as a source partly because its supply ranged from trickle to
flood. After the mid-nineteenth century other sources had to
be tapped for Baltimore, the Gwynns Falls, the Gunpowder River,
and eventually, the Susquehanna River.
As late as 1886 the Maryland legislature had to reiterate
the prohibition "pollution" of the water supplies.38 in 1874 it
was made illegal to throw dead animals or other substances into
the Potomac River.39 That tributary provided drinking water for
many settlements, including the District of Columbia. The
report of the Baltimore Water Commission in 1853 argued against
building an open canal to the reservoir from the source, because
"water is exposed to all the filth and dirt which anyone chooses
to throw into it."40
A classic case of conflict between using water for drinking
and for disposal of wastes was resolved in 1882 when the mayor
and city council of Baltimore sued the Warren Manufacturing Co.
and Summerfield Baldwin.41 The defendant's cotton factory, it
was complained, dumped "divers injurious ingredients and sub-
stances" into the Gunpowder River that had been dammed for
reservoirs by Baltimore city. The resulting pollution contami-
nated the drinking water of Baltimore. The court held that the
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privies and hogpens near the factory did indeed pollute and had
to be removed. But the city was denied relief against the
manufacturer since it was unable to prove the nature of the
pollutants emanating from the manufacturing processes of the
company.
A sampling of the case law in Virginia during the 19th
century reveals that the courts had to deal mostly with mills
that seemed to create disputes. But courts decided not only
about competing rights, but they also addressed pollution issues.
For example, in 1828, a mill dam across Little Creek in
Nottoway Co. caused stagnant waters. The court distinguished
public and private nuisances: to be public it must injure a
right in which the community has a common interest (i.e.,
preserving the lives and health of its members). The plaintiff
failed to show that the stagnation affected a public highway or
some other place in which the public had such special interest.42
Again, in 1833, a court dealt with a case of stagnation
caused by the construction of a mill and milldam, this one on
Deep Creek. The Maud family suffered "severe bilious diseases"
every year, and several "intelligent physicians" and others
from the territory testified that the diseases were "justly
imputable to the effluvia from the stagnant waters of the mill
pond."
At the washing away of the mill, a suit was brought to pre-
vent the owner from rebuilding. The latter argued that he had
built under statutory authority and had a statutory right to
rebuild. The court of equity asserted it had the authority to
"prevent the destruction of health and life, and it distinguished
between danger to health and danger to fish and navigation. The
court ruled that it will allow experiments with the latter, but
as to the former "The law tolerates no such experiments at the
risk of human life."43
Health certainly posed the major issue connected with water
quality in the first two hundred and seventy-five years of our
history. The chief enemies to good health, contagious diseases,
ravaged towns and cities periodically. For centuries people
blamed contagion on the air, not the water. The transmitting by
mosquitoes of both malaria (or swamp fever) and yellow fever was
not discovered until the very end of the 19th century.44 The
bacterial cause of cholera was uncovered in 1884 in Egypt. All
three diseases spread frequently around the shores of the
Chesapeake. Every August newspapers filled columns with accounts
of pestilence and alarm.
The summer epidemic of 1855 in Norfolk illustrates the
horrors of yellow fever. A steamer bound from St. Thomas to New
York put into Hampton Roads for repairs. On board were cases of
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yellow fever, a fact kept hidden until a shipyard laborer con-
tracted the disease. By August the city of Norfolk as well as
Portsmouth suffered decimation of population. Reports say that
the city was wrapped in gloom. Most people were either confined
with sickness or waited on the sick. The number of deaths rose
to 100 daily, and the supply of coffins gave out. The calamity
shocked residents, particularly since they had begun to believe
that their attention to draining streets and using cisterns for
drinking water had saved the city from the recurrence of epi-
demics such as those of 1821 and 1836.45
As early as 1801 the Maryland General Assembly had author-
ized the construction of what was called the "lazaretto" (or
quarantine station) on the shores of the Patapsco River at the
edge of the Baltimore harbor.46 This city already had its
"health police," agents for the commission of citizens that was
set up when Baltimore was incorporated by the state legislature
in 1797.
In 1874, Maryland established a state board of health to
guard the sanitary interests of the people of the state and to
investigate the causes of disease and mortality and to investi-
gate nuisances.47 Local boards of health were authorized by
Maryland's legislators in 1886.48
Just how far attitudes had changed we can see by comparing
these steps with the comment of a civil engineer, Charles Varle,
writing in 1833, only fifty years earlier. After praising what
he called the efficiency of the health police of Baltimore, he
noted the calamitous ravages of cholera in 1832. Out of a
population of 80,900, 3,572 people died. Varle added, "May the
great Disposer of events hereafter keep us free from pestilen-
tial visitations."4$
Citizens prodded officials to prevent the spreading of
disease associated with water and waterfronts. The fever, it
appears, was more terrifying than fire or flood. One gadfly,
Dr. Thomas Buckler, published a map in 1851 showing the areas
of remittent and intermittent fevers around the Patapsco River .50
These were extensive. Buckler had his theories of the causes,
just as other people did: he blamed uncleanliness generally
and decaying refuse and garbage in particular. Darkly he
prophesied that "the germs of an epidemic introduced into the
polluted atmosphere surrounding this festering pond [the Inner
Harbor of Baltimore]" would spread. His solution combined
ingenuity with a lucrative angle. It was simple: shave off
the hill adjacent to the Basin, Federal Hill, and fill in the
Basin for building lots.
Thus, he would have rid the city forever of what he called
"the most unwholesome, disease-engendering and pestilential
condition of the Basin and Docks." He also would have eliminated
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"the stagnant mill-ponds along the Jones Falls, to say nothing
of the putrid, seething and malarial condition of the tidal
portion of the Falls." In addition, he suggested deepening
the falls, so that "the tide may ebb and flow as high up as
Madison street bridge" and in its scouring remove the causes of
disease.51
Back in 1797 another physician, Dr. John Davidge, a leader
in Maryland medical circles, declared that yellow fever was not
contagious. In Philadelphia, the well-known Dr. Benjamin Rush
agreed, but few other people did. People noticed that this
disease for a period always started at Fells Point, and usually
near Smith's Dock. Some noted that just east of the Point and
between it and the lazaretto (quarantine station) stood stagnant
ponds. That was true during the epidemic of 1819.52
After 1822, statistics show a decline in deaths in Balti-
more as yellow fever and malaria diminished. The reason lay in
better drainage and in less commerce with the West Indies. An
urban geographer, Sherry Olson, recently wrote that in this
period a learning process was at work resulting in what she
calls the creation of "new institutions of collective response."
The series of epidemics, she hypothesizes, called attention to
certain "foul and filthy spots and spurred the increase of
regulatory power."53
People believed that the shorelines of harbors threatened
disease. Public opinion, therefore, forced attention of town
and county officials to get rid of marshes and low ground around
settlements. In 1766 an "Act to Remove a Nuisance in Baltimore
Town" denounced in vivid language "large miry marsh giving off
noxious vapors and putrid effluvia."54 Land owners were given
four years to wall off this blemish on the waterfront and fill
it in.
So sensitive indeed were the noses of the 19th century that
writers vied with each other to describe the various perfumes
wafting up from the Basin in Baltimore. One called it "hell-
broth." 55 it was "a bubbling cesspool" remembered Abel Wolman,
a man whose memory reaches back to 1900. He recalls returning
at night about 1910 on the boat from Tolchester and knowing when
he was within five miles of the city by the odor.56
A contemporary historian concludes that Dr. Benjamin Rush
of Philadelphia "tried to improve the public health in Phila-
delphia by such common-sense expedients as sewage disposal, pure
water, and clean streets."57 in other cities similar analyses
appeared. Among reports of the Baltimore Public Health Depart-
ment for 1825 appears a note by a prominent doctor, Thomas E.
Bond, who was called "Consulting Physician": the situation on
Washington Street, Fells Point, "threatens to produce unfriendly
effects on the health of neighboring inhabitants [because] the
23
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fall is insufficient to carry off the water with sufficient
celerity . . . ." He added that "below the apron [of the
planks at the south end of the street] a very dangerous nuisance"
arose because "water . . . becomes stagnant, and emits at this
season a very disagreeable smell and will in the hotter season
of the year be a fertile source of deleterious exhalation."58
C. Waste Disposal
The brackish waters of Chesapeake Bay, while unsuitable for
drinking, were an ideal sink for waste disposal. Inhabitants
flushed their sewage and refuse into the receiving waters of the
estuary. In Norfolk, wrote the traveller Mederic Moreau de St.
Mery in 1794, "The sewage ditches are open, and one crosses them
on little narrow bridges made of short length of plank nailed
to cross pieces."59 These ditches, of course, emptied into the
convenient Bay.
Sixty years later Washington, D.C. appeared "as sour as a
medieval plague spot," according to a later historian of the
Civil War, Margaret Leech. She called the sanitary conditions
of the crowded capital appalling. "With its river flats, its
defective sewage system and its many privies, it had always been
odorous in war weather," but now in wartime, crowded D.C. epi-
demics of disease threatened. "The comatose Board of Health
aroused itself to a protest, the Surgeon General made inquiries
and the War Department conducted an investigation," she cyni-
cally concludes.Not until 1889 were sewers constructed by
the Board of Engineers.
In Baltimore at that time, the harbor ranked "among the
great stenches of the world."61 That City stood out as the last
of the great cities to build a modern system for sewage. It
came in 1906-1915. Writing in 1912, Clayton Coleman Hall
boasted that completion of the system would make Baltimore "the
best sewered and drained city in the world."62 His enthusiasm
carried him into error when he added that "the sewage [after
processing] when discharged into Back River will be purer than
the water into which it is discharged and will be absolutely
innocuous to the oysters and fish inhabiting the waters of the
Bay." Such proved not to be the case.
Baltimore in fact makes a useful example because it became
the metropolis of the Chesapeake region. By 1850 the city had
grown to be the third largest in the United States with 170,000
population. The 70,000 represented the growth during the
preceding decade. In the article about Baltimore in the contem-
porary Gleason's Pictorial Drawing-Room Companion, the writer
noted that "The city is built on quite uneven ground, which
gives an advantage in relation to cleanliness."^
Fifty years later 15,000 houses had private lines to the
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Jones Falls for disposing of raw sewage. But more houses had
cesspools that were cleaned regularly by Odorless Excavating
Apparatus Co.64 The population then stood at half a million.
What had once been of such great service, the good drainage of
the hilly terrain and its streams, no longer served. The soil
became saturated, floods occurred in downtown, and the Inner
Basin smelled to high heaven.65 Dr. Thomas Buckler proposed,
facetiously, that the gases from it be collected to use in
Congress. And he worried about the Inner Harbor, not face-
tiously, that "an epidemic introduced into the polluted atmos-
phere surrounding this festering pond [will spread]."66
In 1875, Milo W. Locke defended his plan for a thorough
purification of Baltimore Harbor. He proposed keeping the water
in motion and by diluting water into which organic matter is
deposited. This defense is in print and has two fold-out
drawings showing how this plan would work. His plan was but one
of fifteen proposed about 1875 to the Joint Standing Committee
on the Harbor, Baltimore City Council.67
Another source of pollution came from the draining of the
filth from streets and shore. For example, the records of the
city of Baltimore, 1782-1797, include a resolution in June 1795
"that Daniel Grant be notified to remove a Nuisance on Public
Alley, which is occasioned by his necessary."68 other nuisances
strewed the alleys and the main streets. Even as late as
1900 stepping stones remained in use to aid pedestrians in
crossing alleys clean-shod above the open drains.69
Streams like Harford Run and Jones Falls in Baltimore
became nothing but canals to carry off the town's wastes. An
English M.P., Sir. George Campbell, commented in 1879 after
a visit that "a peculiarity of Baltimore is that there is no
system of underground drainage" and an understatement worthy of
quotation added that this arrangement was "not very agreeable
to the senses." But he was not certain that this city's old-
fashioned way was not "much more wholesome than our [i.e.,
London's] underground system."70 Why, he didn't say. Possibly
he was thinking of sewer gas.
A century earlier, Baltimore Town Commissioners in February
1768 devised a system of draining water from the main street,
Baltimore Street. The record specifically states the importance
of directing it to the tidewater. What was decided was to make
a small ditch or canal on both sides of the street, the one on
the south (or harbor side) to lead to Gay Street and thence down
Gay Gay through a canal to the waterside. The north side
required a more elaborate route by way of the creek (Jones
Falls). Later Ann Street, running downhill to the harbor, was
given a concave shape with a one foot rise to create a storm
drain.71
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Agricultural and industrial wastes also were disposed of
in streams and tidewater. Plenty of running water made this
flushing easy and effective. But even as early as the 17th
century, town fathers took care to isolate certain trades from
the town center. In laying out Annapolis, for example, Governor
Nicholson imposed an elaborate baroque plan placing centers of
church and of government on hilltops and creating separate
districts, quite distant, for "Brewhouses, Bakehouses, Dyers,
Salt, Soap, and Sugar-Boilers, Chandlers, Hatmakers, Slaughter-
houses, some sort of Fish-mongers, etc."72
Then, in the 19th century when coal mining became a vast
industry in the mountains of states bordering the Bay, streams
carried off wastes produced by a vast industry. For example,
silt and acid from anthracite coal were dumped into the Susque-
hanna's North Branch in Wyoming Valley, Pennsylvania, and
bituminous coal wastes went into the West Branch.73
D. The Fishery
For settlers faced with the threat of malnutrition or
starvation, the Bay contained godsent foodstuff. Shellfish and
finfish were plentiful.74 John Smith noted that the male
Indians "bestowe their times in fishing, hunting, wars, and such
manlike exercises."7 5 And Smith's contemporary in Virginia,
George Percy, wrote of the very large oysters roasted by Indians,
so "delicate in taste."76 Down the years seafood made welcome
gifts.77
The colonial governments in both Maryland and Virginia were
granted by the Crown the right to dispose of the tidewater
subject to public rights of fishing.78 And exercise their
right of fishery, the public did.79 Even in the first century
of colonization some waters were overfished. In 1678 the
Middlesex Court in Virginia acted to conserve the country's
fish. Certain residents had overfished, in the words of the
complaint, "to the Great Hurte and Greivance of most of the
Inhabitants of this County."80 a century later, in 1796, the
Maryland Assembly passed an act for the preservation of a breed
of fish in the Patuxent River: "there should be no whipping or
beating the water between February 1 and June 1." 81
Following independence the inhabitants of Maryland and
Virginia succeeded to all rights previously held by Crown and
Parliament. These rights were to be exercised by the General
Assembly in Maryland and the legislature in Virginia. The
Virginia Constitution restricted this legislative power by pro-
hibiting sale or lease of "natural oyster beds."82
Not long after independence, disputes arose between Mary-
land and Virginia as to fishing rights. The Potomac River
served as the major boundary between the states, and Maryland
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claimed, by virtue of its Charter, exclusive rights therein.
Virginia was taking advantage of its sovereignty over the capes
of the Bay to charge tolls for vessels carrying goods to and
from Maryland. In the Compact of 1785 Virginia agreed to give
vessels bound for Maryland free passage in return for an agree-
ment by Maryland that the right of fishery in the Potomac was
to be equally enjoyed by citizens of both states.83
In the Potomac then, fishery was governed by "mutual con-
sent and approbation of both states." Elsewhere in the tide-
water the states went their respective ways. From the beginning
fishermen put pressure on legislatures to protect the supply of
fish by keeping waters open for their passage of fish.**4 The
courts also ruled against obstructing rivers and streams with
mill-dams, weirs, and hedges. Since these regulations of course
aided navigation as well, much of the wording was general. But
many specifically call the obstruction (usually a mill) dele-
terious to fish.
Examples of the conflict between fisherman and mill-owners
would fill a book. In Virginia, for example, in 1748 the legis-
lature passed an act that authorized clearing rivers where the
passage of fish was obstructed,85 and it went on in 1759 to
order owners of mills on the Rapidan to make slopes for the
passage of fish, because the inhabitants of Culpeper and Orange
Counties had complained. Within the decade other acts forced
mill-owners on the Rivanna, Hedgeman, Meherrin Rivers also to
make slopes.86 Building mills on the Rockfish River below the
forks was prohibited, and one Allan Howard had to tear down his
mill in 1761 because it was entirely obstructing the passage of
fish.87 The Maryland legislature also enacted legislation,
usually about a specific tributary: the Patuxent in 1802, the
Monacacy in 1806, the Susquehanna in 1813, and the Pokomoke
in 1862.88
In these official actions, governmental officials responded
to, and evolved a way of dealing with, conflicts over different
uses of tributary waters.89 But fish in quantity was the goal
at all cost.90
Like finfishermen, shellfisherman took all they could an
enormous volume in the late nineteenth century and jealously
guarded their territories. 93- They began making a living by
oystering, early. And by the end of the eighteenth century they
had organized an industry. They borrowed the Indians' log canoe
and improved on it for transporting oysters from the rocks, the
natural oyster beds. Likewise, they appropriated the Indians'
rake, joined two of them with a hinge, and thus invented the
oyster-tong that continued in use through the nineteenth century.
By 1875, these watermen (as they were called) were harvesting
millions of bushels of oysters a year. But the supply did not
last.92
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When necessary, watermen looked to the Courts to protect
their rights in God's oysters. At the time of the Civil War
in Phipps v. Maryland,93 the defendant was accused of taking
oysters from a private bed. He defended on the grounds that
there was a common law right of public fishery. Apparently,
however, such rights do not extend across state lines. A decade
after the Civil War in McCready v. Virginia,94 the United States
Supreme Court held that the Virginia legislature could lawfully
exclude a Maryland resident from taking oysters in Virginia
waters. Watermen also looked to the legislatures. The greatest
volume of legislation in the 1800's, related to the waters,
concerned the fish and oysters, but mostly oysters. The state
legislatures, particularly Maryland's, tried to control oystering
and to maintain the supply.95
The Maryland Assembly in 1834 met the concern of oystermen
that improper seines in use were covering oyster beds with mud
and thus diminishing the harvest.96 jn i860, the Assembly set
seasons for oystering.97 it also imposed fines for throwing
oyster shells in the water. Already laws existed on the books
of Virginia which prohibited the "casting of Ballast into Rivers
and Creeks" (1691) and required it to be placed on land above
the high water mark.98 in 1748, the Virginia legislature auth-
orized overseers to direct the delivery of ballast to the
shores.99 no doubt such laws were passed to aid navigation as
well as to protect fisheries.
E. Navigation
Many factors contributed to the success of the Bay trade.
If the Chesapeake doesn't exactly match the Mediterranean cli-
mate, it nevertheless remains open year round. There is little
fog. And, as an observer said of Richmond when that city became
the capital of Virginia in 1779, it is "more safe and central
than any other town on navigable water."10° Another advantage
derives from the rush of freshwater that spilled into tribu-
taries of the Bay from the Piedmont Falls. That freshwater was
used to kill what were called the termites of the sea, the ship-
worm, or teredo, enemy of wooden ships. The waters of the Jones
Falls in Baltimore's Inner Harbor cleansed many a sailing
ship.101
The sprawling tidal estuary permitted ships to sail far
inland. This realization occurred to William Byrd II in laying
the foundations of both Richmond and Petersburg in the 1730's:
the uppermost landing of the James and Appomatox
rivers, and are naturally intended for marts where
the traffic of the outer inhabitants must center.
Thus we did not build castles only, but also
cities in the air.1^)2
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Merchants especially worked to promote the navigability of
these rivers. They sought the help of both courts and legisla-
tures to keep ships moving smoothly wherever trade beckoned.
Various colonial bodies tried to assure removal of floating
trees, logs, and limbs; pushing a tree into the water is easier
and quicker than sawing it or burning it on land.
From the beginning Virginia lawmakers focused whatever
attention they gave to water on its usefulness as a road. The
focus was based on economics, not 20th century concerns with
pollution or siltation. There are laws on the books that
address improvements to navigation on almost ever major river.
In 1679, a Grand Assembly met at St. James City and passed
a law authorizing the clearing of rivers near their headwaters
of logs and trees. Furthermore, the counties were left to
decide when and how to conduct improvements of the rivers to
facilitate the passage of ships.103 Then, in 1860, the legisla-
ture authorized appointment of county surveyors to clear water-
ways. Cited was the loss of boats because logs, trees, etc.
were not cleared. A fine,of 500 pounds of tobacco was imposed
for obstructing navigation.104
Again in 1722, the legislature passed an act for the "More
Effectual Clearing of Rivers and Creeks." In the preamble to
the Act, the legislature declared that "many of the rivers and
creeks of this colony are stopped and choked up by the fall of
trees, stumps, and rubbish . . . and hedges are made across the
same whereby the passage of . . . vessels is hindered and
obstructed ... to the great damage of the inhabitants . . .
hinderance of their trade and commerce."105 The county or
counties were then authorized to contract to clear the streams.
A later act especially noted that the debris thrown into the
water not only obstructed navigation but also caused bridges to
break down and get washed away.106
Since shipping tobacco dominated trade, certain acts
specifically refer to the more convenient transport of
tobacco.107 one hundred .pounds, appropriated at the time, was
to clear the Fluvanna of rocks.
In Maryland, also, the legislature and courts helped keep
channels open. For example, in Harrison v. Sterett, decided in
1774, the Provincial Court of Maryland granted relief to one
waterfront lot owner against a neighbor who was constructing a
wharf which would have restricted his water access.108 And, in
1768, the Maryland Assembly passed an Act to Prevent Obstruc-
tions in the Patomack and Monocacy Rivers caused by fish dams. 09
Townspeople insisted that the leaders manage shipping in
the harbors. Ports around the Bay revived the ancient post of
Port Warden for the purpose. The warden's duties included
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conducting surveys of channels and keeping them clear and clean.
He was to remove obstructions and annoyances. The Maryland Act
Appointing Wardens for Baltimore Town in 1783 (this was before
the incorporation of the city) permitted the wardens to pass
regulations and ordinances preventing injury to the harbor from
wharf construction, discharge of ballast, or any other cause.HO
They were specifically asked to approve all wharves that divert
the channel or obstruct navigation.
In the previously discussed Compact of 1785, Maryland and
Virginia agreed that their respective citizens could share navi-
gation rights over the Potomac River, and that Virginia would
give ships bound for Maryland free access to the Bay. An act of
the Maryland Assembly in 1791 authorized commissioners of the
City of Washington to enact regulations governing the discharging
of ballast from ships in the Potomac above the lower line of the
District of Columbia and Georgetown and in the eastern
branch.m
Ballast-discharging bothered Baltimore, too. But a per-
sistent concern of Baltimore's merchants was the shallowness of
the Inner Harbor (formerly called the Inner Basin or Basin, the
northwest branch of the Patapsco River), where the wharves were
both numerous and long. Wharves were numerous there because
the chief merchants ruled from there, and they were long because
they had to reach out to the seagoing ships. The shallowness
was increased by the deposit of sediment washed down by the
Jones Falls into the narrow basin. An act of the Maryland
Assembly in 1791 authorized the deepening.H2 And, after the
War of 1812, the leading politician in town, General Sam Smith,
persuaded the federal government that the ships sunk in the
channel as defense against the British attack on the city in
September 1814 had to be removed at the federal government's
expense. The funds obtained not only raised the ships but also
deepened the channel.
Also important to trade was the maintaining of channels to
upper estuary ports.H3 Virginia and Maryland legislators were
forever opening and extending navigation beyond the settled
districts.
In 1817, Maryland authorized the use of lottery revenues to
improve navigation,H4 and, in 1814, created the Potomac Company
to extend and improve navigation on that river.115 Earlier it
acted to remove bars, shoals, and other obstructions from that
river near Bladensbury.HŪ But that act did little good because
the silting-up continued, and Bladensburg remained (and remains)
a backwater isolated by silt.117
An unfortunate effect of settlement on the Bay's shores was
increased erosion. A modern study of the Bay notes, "The early
settlers wrote of soil erosion and the muddiness of freshets.119
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By 1800 silting had destroyed the channels leading to prominent
tobacco ports at Joppatowne, Port Tobacco, and Upper Marlboro in
Maryland. On the Gunpowder River, Joppatowne once took an eight
foot draft. But just between 1848 and 1897, 7,900,000 cubic
yards of sediment was deposited in the upper part of the Gun-
powder River estuary. "Careless use resulted in much erosion of
the land in the 18th and 19th centuries."!20
In 1753, the Maryland Assembly passed an Act to Prevent
Injuring the Navigation of Baltimore-town and to the Inspection
House at Elk Ridge Landing in the Patapsco. The legislators
noted that by opening and digging into banks of that river, large
quantities of earth and sand are washed into the water. They
also made it unlawful to put earth, sand, etc. into navigable
branches unless well secured.121
And in 1783, that Assembly gave the port wardens power to
enact regulations to prevent injury to the harbor from construc-
tion land, earth, or soil contiguous to the basin or harbor that
might fill it up or obstruct it.122 a century later the Assembly
prohibited disposal of ballast or earth in the Bay itself.123
The main problem centered in Baltimore, where citizens
worried about silting from at least the 1780's on. Cutting down
on Hugh Street at the foot of Federal Hill caused continuous
erosion into the Harbor.124 And, as construction spread north-
wards along Jones Falls, the mouth of that stream built up
alluvium in shoals.
From 1800 on, regular dredging was done in the Potomac at
Georgetown, Washington, and Alexandria. By 1863 soil pollution
posed a general problem along the Potomac.125 Today 25 to 30%
of the million tons of sediment entering the Potomac come from
construction sites in the District of Columbia area. National
Airport is built on dredged channel sediment.126
The mid-19th century produced a clutch of cases concerning
efforts to improve navigation. In Garitee v. Baltimore, the
City deposited dredge spoil in front of the plaintiff's property;
the court granted the plaintiff relief.127 in Baltimore & Ohio
R.R. v. Chase, a dispute arose between neighbors as to access
rights; the Court preferred the rights of the railroad which had
already constructed a navigation improvement.12 8 in Norfolk v.
Cooke, the city was granted relief which precluded a private
party from filling in the tidal basin.129
In 1890, the national government also became involved in
the regulation of navigation. The U. S. Army Corps of Engineers,
long active in dredging and the construction of waterway im-
provements, was directed to establish lines in various harbors
beyond which piers or deposits could not legally be placed.130
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F. Residential and Recreational Use
Tidewater towns have not always been agreeable places to
live. Hampton, Virginia, for example, stands as the oldest
settlement of English America in continuous existence. But its
marshes and mud banks early made it unhealthy. In 1796, Isaac
Weld reported that Hampton was "a dirty disagreeable place,
always infested by a shocking stench from a muddy shore when
the tied [sic] is out."131
Again, about Norfolk, Wlliam Byrd II wrote, "With all these
conveniences it lies under the two great disadvantages that most
of the towns in Holland do by having neither good air nor good
water."132
But living near the water satisfied an esthetic sense as
well. Siting public buildings and dwellings on rises above
rivers and the Bay not only gained desirable "better air" but
also the view. Looking up at these buildings from the water, as
almost all visitors did, people on shipboard enjoyed the way
the man-made crowned the wilderness.
George Washington, for example, boasted that "No estate in
United America is more pleasantly situated" than his Mount
Vernon on its plateau above the wide Potomac.133 Similarly
placed, the 18th century State House and the Governor's Mansion
in Annapolis and Jefferson's state capital in Richmond originally
overlooked their tidal waters.
Lacking such grand vistas of water, English gentlemen con-
structed artificial lakes or reflecting ponds and fountain pools
like those at Blenheim and Chatsworth. Fortunate Marylanders
and Virginians took advantage of their broad rivers and bays to
create similar (but larger) picturesque effects. The waterview
from Java below Annapolis remains unrivaled, though the house
today stands a ruin. But Mount Clare on the Patapsco long ago
lost its view to the industry of Baltimore.
In Virginia three great 18th century mansions one on the
Potomac and two on the James still command their waterfronts.
Lee's Stratford on the Virginia side of the Potomac retains its
original roof decks within groups of huge chimneys linked by
arches. Somewhat later (17 30) William Byrd built Westover right
on the James. Its riverfront facade matched any English mansion
(such as Coleshill and Thorpe Hall) in classical feature and
elegance, but its master made it the nerve-center of his 200
square miles of land. On higher ground twenty years later,
Robert Carters' Carter's Grove took even fuller advantage of its
waterview and turns its richer face toward the James and the
approaching ships.134
Of course it would take a Frenchman who had the eye for
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what was wrong with the esthetic of Bay building: Mederic
Moreau de St. Mery visited Norfolk in 1794 and complained about
the new houses springing up in the direction of the Elizabeth
River and of the new wharves built in haphazard arrangement
"put up solely for the convenience of the owner and built with-
out any general plan, and inconsiderately shut off the view of
the river."135
But commerce was not everything, of course. Residents have
long delighted in the Bay for recreation. Since the time of the
Seventeenth century1s Major Robert Sewall and his ketch Susanna
(1689), private boats have been skimming pleasurably across
uncrowded ways.136 The boats became more and more handsome. In
1760 we have record of an organized regatta. An advertisement
in the Baltimore American of pleasure boats for hire on Fells
Points gives authenticity to the idyllic waterscape in the
popular aquatints and other engravings of Baltimore Harbor about
1825.137
Lower down the Bay, about 1800, the schooner Dolphin
carried "on board a number of Gentlemen on a party of pleasure."
The reported added that with a seine and a variety of fishing
tackle they were "abundantly supplied with fish . . . and to
crown their felicity, they found no vessel in the bay able to
sail with them [that is, capable of outsailing them]."138
In this region of clean estuaries and marshes, sky-full of
ducks and geese attracted hunters whose bag had no limits. By
1814, we are assured, hunters were using "wooden figures cut and
painted so as to represent ducks."139 And the Chesapeake
Retriever was bred for hunting from breeding a pair of
Newfoundlands crossed with water spaniels.140
18th century invalids and health-seekers took the waters
at various mineral springs like Berkeley Springs in the moun-
tains of Virginia. In 1821 those people had the option opened
to them to reside by the Chesapeake at Old Point in Hampton
Roads.141 The hotel called Hygeia flourished as a health resort
there. In 1854, at Ocean View invalids were welcome too.
Recreation there included fishing, walking on the beach, riding,
and hunting.
In the latter part of the 19th century a new pleasure
surprised the burgeoning population, bathing from beaches. A
dignity far above the Tom Sawyer level of skinny-dipping settled
over resorts like Betterton on the Eastern Shore of Maryland
when ladies in black stockings and skirted bathing-dresses
disported on the sand. They looked like penguins. The first
municipal bathing beach opened in Canton, just east of Fells
Point, Baltimore, in 1893. It was fitted out with floats, ropes,
and crude cabins for changing. And suits could be rented. The
next year bathers numbered 27,787.142
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And at that very time just east of this beach, the Back
River approached the end of its long usefulness for recreation.
The 547 acres at the western end of the Eastern Avenue Bridge
was selected for the Baltimore City Sewage Treatment Plant
(1911).143
Few people in the 20th century could just walk down to the
shore for a seine hauling anywhere, anytime, and find the re-
wards celebrated in these lines written in 1754. The author and
his gentlemen and lady friends took a picnic down on Severn
River and listed their supplies:
Six bottles of wine, right old, good and clear
A dozen at least of English strong beear;
Six quarts of good rum, to make punch and gross . . .
A large piece of cheese, a table-cloth too
A sauce-pan, two dishes, and a cork-screw; . . .
A frying pan, bacon or lard for to fry
A tumbler and glass to use when we're dry; . . .
Some vinegar, salt, some parsley and bread
Or else loaves of pone to eat in its stead;
And for fear of bad luck at catching of fish
Suppose we should carry a Ready Dress'd Dish.144
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Section III Notes
1. William J. Hargis, Jr. traces the growth of knowledge of the
region and offers a summary of early exploration in a paper
presented at the Bi-State Conference on Chesapeake Bay,
April 1977, Exploration and Research in Chesapeake By: Being
a Brief History of the Development of Knowledge of the Bay
of Santa Maria, VIMS Contribution No. 837, pp. 14-48.
2. A hundred years later than Brother Carrera, and Englishman
also noted beauty combined with profit:
Mary-Land is a Province situated upon the large
extending bowels of America under the Government
of the Lord Baltimore, adjacent Northwardly upon
the confine of New-England, and neighboring
Southwardly upon Virginia, swelling pleasantly
upon the Bay of Choesapike . . . being within her
own imbraces extraordinarily pleasant and fertile.
Pleasant in respect of the multitude of Navigable
Rivers and Creeks that conveniently and most
profitably lodge within the armes of her green,
spreading, and delightful Woods .... [all one
sentence and ten lines more]
George Alsop, A Character of the Province of Maryland,
London, 1666, edited by William Gowans, 1869, Maryland
Historical Society Fund Publication, Vol. I, pp. 443-4.
3. Richard Hakluyt, Discourse on Western Planning, quoted in
John W. Reps, Tidewater Towns: City Planning in Colonial
Virginia and Maryland, University of North Carolina Press,
Chapel Hill, 1972, p. 24.
4. Virginia Council of the London Company, quoted in Reps,
p. 31.
5. Carville Earle, "Environment, Disease, and Mortality in
Early Virginia," The Chesapeake in the Seventeenth Century:
Essays in Anglo-American Society, T. W. Tate and D. L.
Ammerman, eds., W. W. Norton, N.Y., 1979, p. 103. Contem-
porary evidence appeared in this statement of an Englishman
who was there: "There were never Englishmen left in a
forreigne Country in such miserie as we were in this new
discovered Virginia .... Our drinke cold water taken out
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of the River, which was at a floud verie salt, at a low
tide full of slime and filth, which was the destruction
of many of our men." George Percy's "Account of the Voyage
to Virginia and the Colony's First Days," quoted in
Warren M. Billings, ed., The Old Dominion in the Seven-
teenth Century, University of North Carolina, Chapel Hill,
1975, pp. 22-23.
6. John Smith, quoted by Hamilton Owens, Baltimore on the
Chesapeake, Doubleday, Doran & Co., Garden City, N.Y.,
1941, pp. 8-9.
7. The Virginia Council of the London Company, quoted in Reps,
p. 31.
8. R. V. Coleman, The First Frontier, Schribner's, N.Y.,
1948, p. 271.
9. Evidence of the appetite for arable land appears in an
advertisement in the Virginia Gazette, Williamsburg,
August 29, 1771: "A plantation for sale in King and Queen
County, just below West Point, known by the name of Gough's
Point, containing two hundred acres .... on which is a
good Deal of Marsh that with little Expense might be made
a valuable Meadow."
10. Marion L. Starkey, Land Where Our Fathers Died: The
Settling of the Eastern Shores, Doubleday, Garden City,
N.Y., 1962, p. 113. The Charter of Maryland of 1696 gave
the Baron of Baltimore authority over all the region in the
sea within ten marine lengths of shore and with all ports,
harbors, bays, rivers, etc. (IV). In addition, the Baron
of Baltimore had authority to construct seaports, harbors,
etc., subject to the public's right to fish (XVI).
11. Government officials persisted in authorizing the estab-
lishment of towns. Most efforts failed. When an earlier
Baltimore, laid out on the banks of the Bush River in
Harford County, Maryland, did not develop, it was replaced
by another Baltimore in 1729 on the present site. Again
the Maryland colonial assembly took great pains in 1744 to
establish Charlestown, in Cecil County on the Susquehanna,
by giving special privileges to owners of waterfront lots.
Similar lures succeeded better at Georgetown, Maryland.
The commissioners for the new District of Columbia published
regulations on July 20, 1795 permitting proprietors of
water lots to build wharves "as far out as they think
proper" (but not injuring the channel). Saul K. Padover,
ed., Thomas Jefferson and the National Capital, 1783-1818,
D.C., 1946, p. 326. In 1694 both Annapolis, on the western
shore, and Oxford, on the eastern shore, of Maryland were
made official ports of entry by the Maryland Assembly.
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Then, in 1699, Williamsburg was founded in Virginia.
12. Reps, p. 46.
13. Population figures come from R. C. Simmons, The American
Colonies from Settlement to Independence, David MacKay,
N.Y., 1976, p. 171.
14. In 1705 an advertisement appeared in London called "A Plain
and Friendly Perswasive to the inhabitants of Virginia and
Maryland for promoting towns and cohabitation": "Cohabita-
tion would not only employ thousands of people . . . others
would be employed in hunting, fishing, and fowling, and the
more diligently if assured of a public market." Reprinted
in Virginia Magazine of History and Biography, Richmond,
1897, Vol. 4, p. 261.
15. Reps, p. 98 and p. 100.
16. Daniel J. Boorstin, The Americans; The Colonial Experience,
Random House, N.Y., 1958, p. 108. A contemporary comment
illuminates the problem: "No country in the world can be
more curiously watered. But this conveniency that in
future times may make her like the Netherlands, the richest
place in all America, at the present I look on the greatest
obstacle to trade and commerce." Quoted in Boorstin,
p. 106.
17. Quoted in Starkey, p. 111.
18. Later, in 1765, Col. Landon Carter, owner of a great
Virginia plantation, recorded in his diary for October 3,
"This is a strange ague and fever season. The whole
neighborhood are almost every day sending to me." William
and Mary College Quarterly, Vol. 13 (1905), p. 159.
19. Population figures, Simmons, p. 171. A visitor to the
Chesapeake Bay region in 1785 commented, "Alexandria
[Virginia] has made.considerable advances since 1778, but
afforded no comparison, in its progress, to its vigorous
rival, Baltimore [Maryland]." Ethelyn Cox, Historic
Alexandria, Virginia, Street by Street: A Survey of
Existing Early Buildings, Historic Alexandria Foundation,
Alexandria, Va., 1976, p. xiv.
20. Even moving the new nation's capital to the shores of the
Potomac failed to creat a city for years. Note that the
largest marsh in D.C. was reclaimed only after 1900.
21. The Reverend Hugh Jones, Present State of Virginia, London,
1724, quoted in Proceedings of the Bi-State Conference on
the Chesapeake Bay, 1977, p. 66.
37
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22. Daniel J. Boorstin, The Americans: The Colonial Experience,
Random House, N.Y. , 1958, p. 108.
23. These Virginia and Maryland planters ruled over kingdoms.
George Washington owned a mere 8,000 acres, small compared
with the 63,093 acres of Robert Carter, of Nomini Hall,
Virginia. A Guide to the Architecture of Washington, D.C.,
Praeger, N.Y., 1965, p. 3.
24. Coleman, p. 27 0.
25. Thomas J. Wertenbaker, quoted in Annapolis: Intellectual
Life Around the Punch Bowl," a brochure published by the
Maryland Department of Economic Development, Annapolis,
Md. , n.d.
26. The English settlers by the end of the 17th century had
changed both the place and themselves, although they still
regarded themselves as English. "They had a temperamental
willingness to accept change as a manifestation of good."
Warren M. Billings, ed., The Old Dominion in the Seven-
teenth Century, University of North Carolina, Chapel Hill,
1975, p. 323.
27. Boorstin, p. 172. "[17th century Virginians] passed on
habits and experiences that their fellow countrymen would
one day translate into fundamental rights upon which to lay
the foundation for a nation." Billings, p. 324.
28. Hamilton Owens, editor of the Baltimore Sun in Mencken's
day, who published the story of the port of Baltimore in
1941, called Stevenson the Remus of this future metropolis
of the Bay, Baltimore on the Chesapeake, p. 38.
29. John H. B. Latrobe used this phrase about men he knew in
his youth, just after the turn into the 19th century
Samuel Smith, Robert Gilmore, Robert Oliver, and other
merchant-princes.
30. John Smith, quoted in Robert H. Burgess, This was Chesa-
peake Bay, Cornell Maritime Press, Cambridge, Md., 1963,
p. 4.
31. Alan D. Anderson, The Origin and Resolution of an Urban
Crisis: Baltimore 1890-1930, Johns Hopkins University
Press, Baltimore, 1977, p. 69.
32. Md. Laws (1792).
33. Baltimore City Council, quoted in J. Thomas Scharf,
Chronicles of Baltimore, Turnbull Brothers, Baltimore,
1874, p. 303.
38
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34. Baltimore Gazette and Daily Advertiser, 1/15/1830. The
news report goes on to say the Water Company is "chaining
down our fellow citizens to a prolonged subsistence on
this muddy substitute for the pure element." People lived
in fear of resorting to "pumps which we have found it
necessary to abandon, and imbibe disease and putrid water
together." Almost as bad as disease was the threat of
having to "relinquish the design of multiplying our houses,
our streets, and our people." For a booming town that
threat must have hit hard.
35. Thomas J. Wertenbaker, Norfolk: Historic Southern Port,
Duke University Press, Durham, N.C., 1941, p. 134.
36. Md. Law Ch. 79 §13 (1808).
37. The word polluting appeared in this act, an early use of
the term in the modern sense.
38. Md. Laws Ch. 6 (1886).
39. Md. Laws Ch. 355 (1874).
40. Report of the Baltimore Water Commissioner, 1853, p. 142.
41. Baltimore v. Warren Manufacturing Co., and Summerfield
Baldwin, 59 Maryland Reports, p. 84 (1882).
42. Commonwealth v. Webb, 6 Rand (27 Virginia Reports), p. 726
(1828).
43. Miller v. Truehart, 4 Leigh (31 Virginia Reports), p. 569
(1833) .
44. The discoveries about causes of epidemics of diseases came
about in part through the efforts by two men from the Bay
area both Baltimoreans, Dr. Jesse Lazear (yellow fever) and
Dr. Thomas Buckler (cholera). For the story of Dr. Lazear
see Alan M. Chesney, The Johns Hopkins Hospital and the
Johns Hopkins University School of Medicine: A Chronicle,
The Johns Hopkins Press, Baltimore, 1943. And for the
contribution of Dr. Buckler, see his A History of Epidemic
Cholera, Baltimore, 1851, and "The Almshouse at Calverton:
The Beginning of Scientific Medicine," Maryland State
Medical Journal, Vol. 15 (May 1966), p. 84, which treat
Buckler's report on the almshouse and its being a pest-
house. For a specific case of filth in Baltimore, Buckler
reported in his history that in 1832 there were nine
deaths from cholera during a few days, in a cluster of
houses included in about half the square bounded by
Hamilton, Centre, Charles and St. Paul Streets. "When
the local causes of this group of cases was inquired into,
39
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it was ascertained the a number of pig-styes were kept by
some free negroes, whose houses were only accessible by
narrow alleys running into St. Paul Street. The filthy
condition of these places beggars description." Buckler,
A History of Epidemic Cholera, Baltimore, 1851, pp. 30-31.
45. George D. Armstrong, M.D., History of Yellow Fever in
Norfolk, Philadelphia, 1856.
46. Md. Laws Ch. 93 (1801).
47. Md. Laws Ch. 200 (1874).
48. Md. Laws Ch. 12 § 1 (1886).
49. Charles Varle, A Complete View of Baltimore with a Statis-
tical Sketch, etc., Baltimore, 1833, p. 11.
50. Dr. Thomas Buckler, Baltimore; Its Interest Past,
Present and Future, Baltimore, 1873, p. 10.
51. Buckler, A History of Epidemic Cholera, Baltimore, 1851,
p. 40.
52. William Travis Howard, Public Health Administration and
the Natural History of Disease; 1797-1920, Washington,
Carnegie Institute of Washington, 1924, p. 83.
53. Sherry Olson, Baltimore, Johns Hopkins Press, Baltimore,
1980, pp. 54, 92.
54. Md. Laws (1766).
55. Buckler, Cholera, p. 20.
56. Interview, August, 1980.
57. Boorstin, p. 238.
58. Thomas E. Bond, Report of Baltimore Public Health
Department, Baltimore, 1825.
59. Quoted in Reps, p. 216.
60. Margaret Leech, Reveille in Washington, Harper, N.Y.,
1941, p. 77.
61. Buckler, Past Follies and Present Needs, Baltimore,
1874, p. 49.
62. Clayton Coleman Hall, Baltimore; Its History and Its
People, N.Y., 1912, p. 424.
40
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63. Gleason's Pictorial Drawing-Room Companion, ca. 1855,
p. 218.
64. Anderson, p. 66.
65. In the 1890's "The Back Basin . . . received the effluence
of such sewers as existed and emitted a stench as cadav-
erous and unearthly as that of the canals of Venice ....
During the crusading era the local newspapers often set up
demands that something be done about it, but it continued
to afflict the town until the new sewerage system was com-
pleted, and the Back Basin was reduced to the humble status
of a receptacle for rainwater. Once a Herald editorial
writer proposed in print, and quite seriously, that a dam
be built across the mouth of the Basin, to the end that
the water backed up at high tide might be released
suddenly when the tide was low. His theory was that the
resultant flood would carry off all the dead dogs, decayed
bunches of bananas and the multitudinous worse filth that
floated on the Basin's surface. When an Old Subscriber
wrote in asking what would happen to the shipping in the
lower harbor when this flood roared down the Patapsco,
the editorial writer was indignant, and accused various
reporters of writing the letter." H. L. Mencken,
Newspaper Days, Alfred A. Knopf, N.Y., 1943, pp. 53-54.
66. Buckler, Past Follies and Present Needs, Baltimore, 1874,
p. 19.
67. Milo W. Locke, Harbor of Baltimore: Locke's Plan,
Baltimore, 1875. See all H. W. Shure's presentation of the
plan by Rolin Bestor of Jersey City, N.J., for purifying
Baltimore Harbor, 1877, to cost $200,000 and to cleanse
1,800,000 gallons per hour. Inventory #1717, Baltimore
City Department of Surveys, City Hall Annex, Holliday
Street.
68. Baltimore City Council,-June 1795.
69. Frank Shivers, Bolton Hill:- Baltimore Classic, Baltimore,
1958, p. 12.
70. Sir George Campbell, M.P., White and Black, N.Y., 1879,
p. 257.
71. Baltimore City Council notation in manuscript in the Corner
Collection, M.H.S. for February 1768.
72. Reps, p. 126.
73. Harold K. Kanarek, The Mid-Atlantic Engineers: A History
of the Baltimore District U.S. Army Corps of Engineers,
41
\
-------
1774-1974, Washington, 1977, p. 117 passim.
74. This plentifulness of fish was attested to many times in
writing, as, for example, by George Alsop, a 17th century
observor, in his "A Character of the Province of Maryland,"
"As for fish, which dwell in the watery tenements of the
deep, and by a providential greatness of power, is kept
for the relief of several Countries in the world (which
would else sink under the rigid enemy of want), here in
Maryland is a large sufficiency, and plenty of almost all
sorts of Fishes, which live and inhabit within her several
Rivers and Creeks, far beyond the apprehending or crediting
of those that never saw the same, which with very ease is
catched, to the great refreshment of the Inhabitants of
the Province." (London, 1666, quoted in Maryland His-
torical Society Fund Publication, vols. 11-15, p. 450.)
The flavor of the seafood also came in for comment, as on
October 13, 1765 William Gregory noted in his journal,
"I put up at Midton's [Annapolis]. Fine oysters to be had."
The next day he wrote, "I set out for Joppa about 12
o'clock and arrived here just at 8 o'clock. Pretty large
vessels coming up to this place. Good oysters ....
Gunpowder river runs past here." William Gregory's Journal
from Fredericksburg, Va. to Philadelphia," in William and
Mary College Quarterly, vol. 13 (1905), p. 226.
75. John Smith, quoted in Billings, p. 215.
76. George Percy, Account of the Voyage to Virginia and the
Colony's First Days, quoted in Billings, ed., The Old
Dominion in the Seventeenth Century, pp. 22-23.
77. These gifts of seafood were not well received by Col.
Landon Carter of Sabine Hall in the Northern Neck on the
Rappahannock River, as he recorded in his diary of 1770.
Perhaps Carter had reason for being so irascible; he
seems to have felt keenly the defection of "a dear girl":
This morning two dozen of Trout came from Captain
Beale, but I want no communication with a man who
must have been concerned in his son's fascinating a
dear girl away from me, tho' I don't suppose him
concerned in that vile behavior shown to me by the
monster, his son, sometimes before my deluded child
went away. I say I want to drop all connection
with this father, by much too guilty in effecting
that, my certain misery. Yet as he shewed a kindness
to the family, indeed his blood relations to the
marriage of his daughter with my son, I thanked him
in their behalf, and ordered a bushel of Bernard
Creek oysters to be returned. I shall not eat of
these fish ....
42
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"The Diary of Colonel Landon Carter, of Sabine Hall in the
Northern Neck of the Rappahannock River," William and Mary
Quarterly, vol. 13 (1905), p. 42. Percy also put together
Observations Gathered Out of a Discourse of the Plantation
of the Southerne Colonie in Virginia, in Purchase HjTs
Pilgrimes, 1606, London, 1625 (reprinted in Edward Arber
and A. G. Bradley, Travels and Works of Captain John Smith,
Edinburgh, 1910, Vol. 1, p. lxii). In it he noted that the
mussels and oysters lay on the ground as thick as stones.
"We opened some and found in many of them pearls." A
letter from the Council in Virginia to Council in England
dated June 22, 1607, attests to the sweet sturgeon in
the James River:
We are set down eighty miles within a river, for
breadth, sweetness of water, length navigable into
the country, deep and bold channel, so stored with
sturgeon and other sweet fish as no man's fortune
has ever possessed the like. And, as we think, if
more may be wished in a river it will be found.
Quoted in Alexander Brown, The Genesis of the United
States, Boston, 1891, vol. 1, p. 107.
78. See Garrett Power, Chesapeake Bay in Legal Perspective,
Government Printing Office, 1970, pp. 81-83.
79. Disposing of the tidewater, subject to public rights of
fishing, was the way local governments encouraged commerce.
In 1745, for example, the Maryland General Assembly decided
that "all improvements, of what kind so ever, either wharfs,
houses or other buildings, that have or shall be made out
of the water, or where it usually flows shall [as an
encouragement to such improvers] be forever deemed the
right, title and inheritance of such improver." Md. Laws,
ch. 9 (1745). Then, in 1759, wharves 1000 feet long were
built by John Smith, William Buchanan, and William Spear.
Without this lengthy wharfage to deep water, Baltimore
would not have grown as a port. Emerson L. Dorsey, Jr.,
"A Legal History of the Port of Baltimore," U.M.L.S. ms.,
1978, p. 4. The enthusiasm for oysters led a group of
five 17th century Virginians to break the sabbath. When
discovered, they had a canoe full of oysters. But they
escaped punishment, and presumably kept the oysters,
because the sick wife of one of them had a craving for
oysters, and on Saturday her husband had been kept from
going out and tonging them by the wind. Susie M. Ames,
Studies of the Virginian Eastern Shore in the Seventeenth
Century, Russell and Russell, N.Y., 1940, p. 185.
80. Billings, p. 321.
43
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81. Md. Laws (1796).
82. Virginia Constitution, section 175.
83. Carl N. Everstine, The Compact of 17 85,' Research Report
No. 26, Legislative Council of Maryland (September 1946).
Under the 1785 Maryland-Virginia Compact, full property
rights along the shores were guaranteed to citizens of
both states, including fishing rights. All laws to
preserve fish had to be made with the consent of both
states.
84. Among these regulations, those in Acts of Assembly Now in
Force in the Colony of Virginia for 1769 order that owners
of mills, hedges, and stone stops shall make openings for
passage of fish.
85. 6 Hen. 69 1748, ch. 29 §§1-3.
86. Owners of Mills were ordered to make slopes for the passage
of fish by the following Virginia laws.
Rivanna and Hedgeman Rivers, 8 Hen. 361 §81;
Meherrin River, 8 Hen. 583, 1772 ch. 33;
Rapidan River, 9 Hen. 579, 1778 ch. 39;
7 Hen. 321, 1759 ch. 32. Amended 7 Hen. 590
(for Appomatox River);
7 Hen. 423, 1761 ch. 20;
7 Hen. 321, 1759 ch. 32, and, amended to include
the Appomatox River, 7 Hen. 590.
87. Allan Howard's mill was torn down because it entirely
obstructed the passage of fish (7 Hen. 423, 1761,
ch. 20) .
88. Patuxent, Maryland Laws ch. 70 (1802); Monocacy, Maryland
Laws ch. 79 (1806); Susquehanna, Maryland Laws ch. 91
(1813); Pokomoke, Maryland Laws ch. 70 (1862).
89. Back in the 17th century the Council and Burgesses of
Virginia apprised the governor of the "great mischiefs
and inconveniences" that killing whales in the Chesapeake
"accrew-to the inhabitants." The reason: by these
killings "great quantities of fish are poisoned and
destroyed and the rivers also made noisome and offensive."
Council Papers of Virginia, 1698, Virginia Magazine of
History and Biography, Richmond, 1913, vol. 21, p. 76.
44
-------
90. A Maryland journalist who traveled in the early 19th
century around the United States, reported on the large
fisheries for herring (and shad) at the mouth of the
Susquehanna: the fish were taken in large nets "from
108 to 200 fathoms in length spread across the river by
boats. The ten fisheries employed fourteen to fifteen
men each at fifteen dollars per month, with their provi-
sions, to catch, cure, and pack the herrings in barrels."
The author added: "These fishermen make a wretched
appearance, they certainly bring up the rear of the human
race. They were scarcely covered with clothes, were
mostly drunk, and had the looks of the veriest sots upon
earth." Anne Royall, Sketches of the History, Life and
Manners in the United States, New Haven, 1826, pp. 109-
148 passim. Fisheries were subject to regulations about
polluting also. In 1810 the Maryland Assembly ordered
them to remove the pickle used in their operations, to
clean their slips, and to remove all fish from shores
within ten days of the end of the season. Maryland Laws,
ch. 95 (1810).
91. Legislation intended to preserve fisheries in Maryland:
Forbidding improper seines whose use covered
oysters with mud, thus reducing the supply,
ch. 311 (1834).
Prohibiting the use of defective instruments,
ch. 310 (1837).
Establishing the ownership rights of proprietors
and also setting out seasons for oystering. In
addition, fines were imposed for throwing oyster
shells in the water. Article 71 §15 (1860).
Laws designating who may take what, where, when,
and how. ch. 184 (1868).
Allowing Worcester County to take over regulation
of its own oysters. Art. 23 §90 (1868).
Licensing requirements for fishing for shad or
herring in the Potomac River, ch. 205 (1870);
codified in Art. 72 §1 (1888); enacted ch. 296
(1886).
Authorizing the Board of Public Works to purchase
guard boats, guns, and ammunition, and to create
a fishery force, charged with the control and
enforcement of all state laws concerning fish,
ch. 296 §23-41 (1878).
45
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Preserving diamond back terrapins. ch. 424 §1
et seq.; codified art. 92 §1 et seq. (1888).
92. "It is significant to note that while the population of the
United States between 1880 and 1930 increased by 144.8 per
cent, the per capita oyster consumption declined by 77.3
per cent." In this period there was an 81.6 per cent
decline in annual catch. In 1880 Maryland had 47.5 per
cent of the Atlantic and Gulf production, and by 19 30 it
had only 15.4 percent. Conservation Problems in Maryland,
State Planning Commission, February, 1936, p. 3.
93. Phipps v. Maryland, 22 Maryland Reports, p. 38 (1864).
94. McCready v. Virginia, 94 United States Reports, p. 391
(1876).
95. Garrett Power, "More About Oysters Than You Wanted to Know,"
Vol. 30 Maryland Law Review (1970), pp. 202-210.
96. Md. Laws ch. 311 (1834).
97. Md. Laws Art. 71 §15 (1860); also, ch. 184 (1867) on who
may take what, where, when, and how.
98. Va. Laws, 3 Hen. 46, 47 (1691).
99. Va. Laws ch. 36 §13 (1748). Penalties were periodically
imposed, including one for casting dead bodies into rivers
(3 Hen. 353, ch. 27 1705).
100. Paul S. Dulaney, The Architecture of Historic Richmond,
Richmond, 1976, p. 2.
101. Robert H. Burgess, This was Chesapeake Bay, Cambridge, Md.,
Cornell Maritime Press, 1963, p. 47.
102.
Reps, p.
222
:.
103.
Va. Laws,
2
Hen.
455, ch.
31
(1679).
104.
Va. Laws,
2
Hen.
484, ch.
15
(1680).
105.
Va. Laws,
4
Hen.
Ill, ch.
7
(1722).
106.
Va. Laws,
4
Hen.
177, ch.
7
(1726).
107.
Va. Laws,
4
Hen.
375, ch.
18
(1745).
108.
4 Har. &
M.
Ch.
547 (1774)
46
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109. Md. Laws ch. 5 (1768).
110. Md. Laws (1783).
111. Md. Laws ch. 45 (1791).
112. Md. Laws ch. 45 §7 (1791).
113. Virginia legislators responded with the following laws
which provided:
for the clearing of the Appomatox and Pamunkey
rivers, 6 Hen. 394, 1752, ch. 40.
for clearing the James and the Chickahominy
rivers and extending navigation, 8 Hen. 148,
1765, ch. 34.
for clearing the Great Falls of the James and
extending navigation. 8 Hen. 148, 1765, ch. 34.
for extending navigation on the Potowmack from
Fort Cumberland to the Tidewater, 8 Hen. 570,
1772, ch. 31.
for improving navigation, incorporation of the
James River Company, 11 Hen. 450, 1784, ch. 19,
and for other improvements, 11 Hen. 341, 1783,
ch. 25.
opening and extending navigation of the Potomack
and the Potomack Company incorporated, 11 Hen.
510, 1784, ch. 43.
opening, extending navigation on the Appomatox,
12 Hen. 591, 1787, ch. 53, and for the same on
the Chickahominy, 12 Hen. 382, 1786, ch. 92.
114. Md. Laws ch. 154 §18 (1817).
115. Md. Laws ch. 75 (1814).
116. Md. Laws ch. 35 §3 (1800).
117. From 1800 on, regular dredging was done in the Potomac
at Georgetown, Washington, and Alexandria. By 1863
soil pollution poses definite problems along the Potomac.
Kenneth Lasson, "A History of Potomac River Conflicts,"
in Legal Rights in Potomac Waters, p. 27.
118. de Gast, The Bay, p. 1.
47
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119. M. Gordon Wolman, in Proceedings of Governor's Conference
on Chesapeake Bay (1968).
120. Deric 01Bryan and Russell McAvoy, Gunpowder Falls, Md. ,
Geological Survey Water Supply Paper, 1966, p. 6.
121. Md. Laws (1753).
122. Md. Laws (1783).
123. Md. Laws (1872).
124. Olson, p. 55.
125. Kenneth Lasson, "A History of Potomac River Conflicts:
Legal Rights in Potomac Waters," Annapolis, 1976, p. 27.
126. Wolman, Proceedings, p. II 26.
127. Garitee v. Baltimore, Vol. 53 Maryland Reports, p. 422
(1880).
128. Baltimore and Ohio Railroad v. Chase, 43 Maryland Reports
at p. 35 (1875).
129. Norfolk City v. Cooke, Virginia, Vol. 27 Gratt, p. 430
(1836).
130. Attitudes toward regulation and towards attempts by the
government to impose its will on the water may be
reflected in the following article from a newspaper of
11/19/1868, published in a Maryland town on the Susque-
hann River, the Havre de Grace Republican:
The much talked of breakwater the government
recently put in the river opposite the light
house looks as if it has been on a "bust."
Old Susquehanna has been turning the tables and
amusing herself in smashing and breaking the break-
water and all in the most cool, calm, and pleasant
manner imaginable, giving evidence of what she can
do when she gets her "dander" up, and sends her
angry floods in their resistless power.
We understand the government is about taking the
plank and frame work up and putting them in some
sheltered place for safety through the winter. We
suggest the only safe place is high and dry on shore
where they will do about as much good in keeping
open the channel of the river, as in their present
location.
48
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131. Reps. p. 70.
132. Reps, p. 75.
133. Brochure, Mount Vernon Ladies' Association of the Union,
Mount Vernon, Va., 197 8.
134. Stratford probably was designed by the Royal Words Circle
in London. The chimneys (but not the view) resemble those
of Claremont, designed by Sir John Vanbrugh twenty years
earlier. (Sir John Summerson, The Pelican History of Art:
Architecture in Britain, 1530-1830, Penguin, Hammondsworth,
Middlesex, 1970, p. 542.) John Ariss advertised in the
Maryland Gazette in 1751 as "lately from Great Britain,"
and capable of "buildings of all sorts and dimensions . . .
either of the Ancient or Modern order of Gibbs, Arch."
Ariss was born in Virginia, educated in England, and
represented a new type of trained professional builder/
designer who collaborated with their gentlemen-patrons who
had ideas but no technical knowledge. Ariss wrote books
on how to follow Gibbs, the leading English architect. No
single British house served as the source for Virginia's
mansions. But prototypes includes Coleshill, Bershire,
probably by Roger Pratt ca. 1650 and Thorpe Hall, Norfolk,
by Peter Mills, 1653-56. Alan Gowans, Images of American
Living, Harper & Row, N.Y., 1976, p. 133.
135. Reps, p. 4.
136. M. V. Brewington, Chesapeake Bay; A Pictorial Maritime
History, Cornell Maritime Press, Cambridge, Md., 1956,
p. 221.
137. Brewington, p. 223.
138. Brewington, p. 222.
139. Brewington, p. 223.
140. Swepson Earle, The Chesapeake Country, Thomsen-Ellis Co.,
Baltimore, 1929, p. 265.
141. Wertenbaker, Norfolk, pp. 294-95.
142. Md. Historical Society Magazine (1950), p. 201.
143. Daniel Cooke, Impact of Pollution on the Water Oriented
Activities of Back River, Md., University of Tennessee
M.S. Thesis, 1968, Enoch Pratt Free Library.
144. Maryland Gazette, August 20, 1754, reprinted in J. Thomas
Scharf, History of Maryland, Baltimore, 1879, vol. 2, p. 13.
49
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SECTION IV
THE TURN OF THE CENTURY
We have discussed the development of the Bay region over
its first 300 years, and described the origins of various uses
of the Bay and its resources. We now look more specifically to
the water quality issues which emerged by the beginning of the
twentieth century.
The nineteenth century saw the development of four impor-
tant forces that directly influenced the Bay. Foremost was the
development of the cities of Hampton Roads, Richmond, Washington,
and Baltimore. With them came the need for water supply and
municipal sanitation. Concurrently developing was the large
scale use of the Bay as a waste placement sink. This use was
related both to the growth of cities and their water supplies,
and to the growth of industry. Deepwater navigation by merchant
ships was also on the rise. Last in economic importance, but
perhaps first in terms of political attention, was the growth
in commercial fishing, most particularly the oyster fleet.
Paralleling these developments was a growth in government.
By the turn of the twentieth century more governments were
promulgating more laws and regulations which influenced the Bay.
As the cities of the Bay region grew, they had to deal with the
problem of municipal sanitation. Springs and small streams
gradually proved inadequate to supply water for the growing
populations, which by the latter part of the nineteenth century
began to seek the advantages of indoor plumbing. The solution
in the Bay towns as elsewhere was to form municipal water
companies and distribute.the water through a central system.
Richmond and Washington were able to use the large flow of the
James and Potomac Rivers, while Baltimore reached out into the
surrounding country to impound small rural streams. The Norfolk
area was forced to rely almost entirely on wells. By the 1870's,
all the Bay's cities were using substantially more water per
capita, not only for domestic use but for street cleaning, fire
protection, and industry.1 This water, laden with wastes,
quickly reached the Bay. Because of the relatively sluggish
tidal exchange rates of the Patapsco basin in Baltimore, the
upper Potomac estuary in Washington, and the small tidewater
creeks off Hampton Road, these waters all were directly offen-
sive to the senses, at least at certain times of the year by the
end of the Civil War.2
50
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Concurrent with municipal growth was the concern for con-
trolling contagious or epidemic diseases. Prior to the last
decade of the nineteenth century, the prevailing theory was that
miasmas, or foul air, transmitted most of the diseases then
highly feared, such as cholera, dysentery, and yellow fever.
Special attention was, therefore, given to municipal drainage,
to the elimination of swamps, and to the design of sewers, so
that the latter would not result in the build-up of sewer gas.
Contaminated water had, of course, also long been recognized as
a source of disease, although the causal agent had not been
determined until the germ theory of disease was established just
before the turn of the century.^
As the result of this interest in water supply, wastewater
removal, and public health, the cities around the Bay formed
public works bureaucracies starting with municipal water com-
panies, and then going to sewerage commissions.4 At about the
same time, local and state agencies were formed to study public
health issues, apply quarantines, and police sanitary practices.
The Bay and its tributaries have been used for waste place-
ment ever since the area was settled. By the nineteenth century,
there was an abundance of statutes in both Bay states prohibiting
the dumping of various injurious substances into waterways.5
These statutes were enforced by local sheriffs, if at all. One
can surmise that the refuse from sawmills, slaughterhouses, and
canneries, all of which were addressed in some way, were
sufficiently abundant and obnoxious to provoke objections from
fishermen and shoreline property owners.
By the end of the nineteenth century, larger industries
were taking their places in and around the Bay, and there was a
sizeable increase in vegetable canning and other food processing
operations. Add to that the discharges from municipal sewers,
and it seems evident that the Bay was receiving a greatly
increased load of man-produced wastes. Except in Baltimore
Harbor, which we will discuss in the next section, this in-
creased waste loading did not appear to provoke any great outcry
other than perhaps the local objections to specific discharges
on specific creeks. In summary, there was evidence of increased
waste discharges, concommitant with increased population and
economic growth, but not direct government attention to it.
The nineteenth century was a period of intense national
interest in improving waterborne transportation. In the Bay
region this centered on the development and enlargement of the
Chesapeake and Delaware Canal, the approach channels and port
facilities of Hampton Roads, Richmond, and Baltimore, and the
various canal schemes and projects to link Richmond and Washing-
ton with the interior, of which the Chesapeake and Ohio Canal
was the most important.6 Canals were to be supplanted by the
railroads, which made the deepwater ports of Baltimore and
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Hampton Roads prominent and prosperous. Conflicts between
shippers and other users were occasional and minor. Oystermen
in the Baltimore area claimed that dredged channels destroyed
oyster bars, and shipping interests claimed that oyster dredges
damaged the shipping channels. But the growth of shipping set
the stage for two large conflicts: for the first half of the
twentieth century, oil discharged from ships as they pumped
their bilges was one of the worst pollution problems on the Bay;
and, since about 1960, the problem of what to do with the ma-
terial dredged from shipping channels has caused major contro-
versies .
Commercial fishing on the Bay prior to the nineteenth
century was primarily for local consumption and attracted rela-
tively little political attention. By the early part of the
nineteenth century, New England oystermen were making raids on
the abundant oyster bars of the Chesapeake. The New Englanders
were taking oysters to northern markets centered in New York and
Philadelphia, and were using Bay seed oysters to restock their
bars, which had been stripped by earlier generations of New
England fishermen. Both Virginia and Maryland moved to prevent
out-of-staters from capitalizing on the Bay's resources, and
there gradually developed a robust Bay oyster industry, which
peaked in the 1880's.7 Despite exclusionary legislation, much
of the impetus for this development still came from New Englan-
ders, who financed many of the largest harvesting, processing,
and shipping operations.
The development of)the oyster industry has been a dominant
factor in the evolution of Bay water quality policy and politics
for nearly a century. Virtually all of the significant issues
over quality have had the welfare of the oyster and the oyster-
man as central concern. It is, therefore, useful to outline the
development of the industry, in order to explain its central
importance.
Oysters in Chesapeake Bay are nearly ubiquitous except in
the upper, low salinity reaches of the Bay and its tributaries.
They occur in commercial quantities on beds variously known as
bars, reefs, rocks, or knolls. These bars are potentially self-
sustaining. Oyster larvae, which are released by mature oysters
in the late spring and spend a period of time as a free-floating
part of the Bay zoo-plankton, eventually must settle on a hard
surface to begin the development of a shell and their growth to
maturity. An ideal surface is the shell of another oyster,
living or dead. Thus over time, a favorable site will develop
an expanding area and quantity of oysters, built on the shells
of oysters that preceded them. In some places these bars grew
to within a few feet of the surface, hence the name "reef." It
was these natural bars that attracted the New England oystermen,
and later provided the crop that reportedly totaled over 20
million bushels a year during the 1880's.8
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Bars built by nature can also be destroyed by natural
means. Long-term freshening of the upper Bay and the Potomac
have eliminated once-productive beds leaving vast quantities of
shell. The constant shifting of the Bay bottom and erosion of
its shoreline have silted over bars that could not grow upward
fast enough to keep ahead of the deposits. And natural enemies
such as the starfish, the moray eel, or various smaller preda-
tors and diseases, could and no doubt did eliminate bars. But
in the nineteenth century, and by general reputation still in
the twentieth, the Bay.was perhaps the most productive natural
oyster ground on earth.
Man also can both destroy and build oyster beds, in the
latter case requiring assistance of nature. Destruction can be
indirect, through the modification of salinity patterns in the
Bay or by increasing sedimentation and erosion. Both factors
were no doubt in existence during the nineteenth century and
earlier, because of changes to soil erosion rates and streamflow
caused by land clearance for agriculture and lumbering. There
is some evidence that Indians also affected these factors by
frequently using fire to improve hunting.
The most dramatic destruction of oyster beds is by over-
fishing, and it was through this that large areas were rendered
non-productive during the heyday of the oyster raids of the late
nineteenth century. Despite growing concern for the decline of
the industry, and a large body of law to prevent it, beds were
stripped of their standing crops of mature oysters, and, in some
cases, rendered unfit for future productivity.
On the positive side, man can establish a bed for oyster
production, using techniques perfected in France in the early
part of the nineteenth century. Oyster shells can be dumped in
an otherwise fallow area, and either receive a natural catch of
spat, or be provided with seed oysters from another area.
Through a process of preparing the ground,, planting, thinning,
and preventing excessive siltation and predators, man can pro-
duce oysters in a fashion analogous to land farming. The
productivity of natural bars can also be enhanced using the same
techniques.
Government involvement in the oyster industry was, as
mentioned, extensive in the nineteenth century. The "oyster
question" occupied much of the time of both state legislatures.
The first task was to prevent outsiders from stripping the
bounty of the Bay. The second was to prevent residents from
over-harvesting. The third was to resolve the various disputes
between different counties, since most regulation was done on
a county-by-county basis. The fourth was to address differences
between hand tongers, who generally worked the more protected
and shallow waters of the Bay's tributaries, and the dredgers,
who worked the larger bars and were regarded as the chief
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sources of oyster bar destruction.
Last, but not least, the legislatures had to address the
question of whether to allow the leasing of Bay bottom for the
farming of oysters. Clearly it would not be profitable to go to
the expense of developing a bed if someone else could harvest
it. It was the opinion of many who watched the great oyster
boom that the future of the industry lay in private oyster
culture. The oystermen who made their living harvesting natu-
rally grown oysters did not want to be denied that opportunity.
In Virginia, therefore, the solution was to establish that all
natural bars, as delineated in a late nineteenth century survey,
were to remain as common property resources, open to harvest by
anyone who met residency requirements and who observed laws
relating to licensing, gear, and season. At the same time, a
method was established to lease fallow bottom to individuals or
corporations, thus permitting the development of a substantial
private culture, as had been developed in Europe, New York, and
New England. Maryland attempted to do essentially the same
thing, but public-bed oystermen repeatedly blocked any signifi-
cant effort to establish a private oyster section in Maryland,
so that today the only oyster farming of any size in Maryland is
done by the state on public beds. As we shall see, the nature
of the oyster industry with respect to public and private access
has a definite impact on the definition of water quality
problems in Virginia and Maryland.
The growth of oystering in the late nineteenth century was
matched by a growth in subsidiary industries. Oysters had to be
shucked, canned, packed, and shipped, and these operations em-
ployed thousands of workers in the centers of Baltimore, Norfolk,
and Crisfield.^ The economic atlas for the. State of Maryland at
the turn of the century illustrates not only the numbers of
persons involved in the industry, but the fact that they were
distributed throughout the tidewater counties.10 Because each
county had a single senator in those days, and the tidewater
counties outnumbered their non-tidal counterparts, political
representation for the oyster interests were disproportionately
large.11 The welfare of watermen and the well-being of the
oyster industry were considerations of great political weight by
the turn of the century. In Maryland particularly, the oyster
was seen to be a prime economic asset,12 and this perception,
developed by the economic energy of the industry in the late
nineteenth century, persists to this day.
The commercial harvest of finfish has never gained anything
like the size or political significance of the oyster industry
in the Bay states, but it was a matter of considerable attention
in the nineteenth century, particularly with respect to shad.
Shad runs had apparently supplied a substantial portion of the
food of some of the poorer Bay area residents for some time, and
reductions in spring runs had been lamented at least since the
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1920's. The numerous statutes relating to the damming and
blocking of streams were aimed partly at reducing the obstruc-
tions to the spawning of shad. Declines in supply had the
effect of driving up prices, which was decried as having an
unfortunate impact on the poor.13
Declines of finfish throughout the Eastern United States
had much to do with the formation of the Federal Fisheries
Service, which in turn led to the establishment of state
fisheries boards in both states soon after the Civil War. These
boards, along with the oyster police forces also established
during this period, constituted the first steps to creating a
state bureaucracy for the management of Bay resources. Although
these boards were small in 1900, they provided a permanent
government presence that represented the interests of both sport
and commercial fishermen. By the early twentieth century, they
were to play an important role in addressing water quality
issues in both states.
By 1900 the dominant Bay uses of waste placement, navi-
gation, and fisheries were well established, and there.was
considerable recreational activity as well. Conflicts between
these uses were few. The one serious and sustained water
quality problem of the nineteenth century, the contamination of
Baltimore Harbor, was primarily a nuisance issue, rather than a
real confrontation between user groups of the kind that will be
shown to dominate the twentieth century. Nevertheless, the
stage was set: the politically well established oyster industry
was in place; the municipalities of the region had installed (or
in the case of Baltimore were about to install) large centra-
lized sewer systems that dumped waste loads that were ever
increasing because of the growth of population, the increased
use of municipally supplied domestic water, and the wide-scale
installation of the water closet; industry was beginning a major
expansion as a result of new technology; and accompanying indus-
trial and economic expansion was the growth in the size and
number of ships and other commercial craft using the Bay. More
quietly, but of considerable importance, growing numbers of
Bay residents were making use of the Bay for recreation and as
a source of amenity.
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Section IV Notes
1. Manual of American Water Works, 1888, Engineers News,
N.Y., 1889. Passim.
2. Abel Wolman and John C. Geyer, Report on the Sanitary
Sewers and Waste Water Disposal in the Washington Metro-
politan Region, 1962.
3. For a particularly lively account of these issues in
Baltimore, see Report of the [Maryland] Board of Health
1884, in House and Senate Documents 1884, pp. 28-32 and
140-178.
4. For an interesting summary of this process, see Martin V.
Melosi, ed., Pollution and Reform in .American Cities,
1870-1930, University of Texas Press, Austin, Texas, 1980.
5. For Virginia, see note III 104, supra; for Maryland, see
Acts of 1808, ch. 79, §13; and 1886, ch. 6.
6. See "Maritime Development" in Proceedings of the Bi-State
Conference on the Chesapeake Bay, Chesapeake Research
Consortium, 1977, pp. 66-69.
7. There is no single study of the Bay oyster industry, al-
though there is an abundance of source materials. For
an outline of oyster legislation and production figures
from 1810-1910, see Hugh S. Cumming, Investigation of the
Pollution of Tidal Waters of Maryland and Virginia, Public
( Health Bulletin #74, March, 1916, p"I 18.
8. William Keith Brooks, The Oyster, Johns Hopkins University
Press, Baltimore, 1891 (2nd ed. 1905).
9. For a detailed account of the industry, see "Baltimore:
1870-1900 Studies in Social History," Baltimore, Johns
Hopkins University Press, 1941, pp. 42-62. Passim.
10. Report of the Bureau of Labor and Statistics, State of
Maryland, 1903. Passim.
11. See Harry J. Green, "A Study of the Legislation of the
State of Maryland," Baltimore, Johns Hopkins University
Press, 1930, pp. 22-24.
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12. See, e.g., Governor Oden Bowie, Message to the Maryland
General Assembly, 1870, House and Senate Documents, 1870,
pp. 18-21.. Governor Frank Brown, Message to the General
Assembly, 1894, p. 16.
13. See Report on the Fisheries and Waterfowl of Maryland,
House and Senate Documents, 1872, Document E, p. 37.
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SECTION V
1900-1945
By 1900, the condition of the Baltimore Basin was a long-
time topic of agitated debate. In 1893, a sewerage commission
was appointed to tackle the problem afresh, since the reports
of earlier commissions (1862 and 1883)1 had not led to action.
The commission dutifully set out to study the various alterna-
tives, which it did in great detail, making use of some of the
leading authorities of the time. In 1897, it submitted its
report,2 which recommended the building of a sewer that would
discharge the untreated wastes of some 350,000 people into the
Bay. This approach, which would be unthinkable today, was
labeled as the "water carriage-dilution method" of waste dis-
posal, a rather euphonious term for what another writer vividly
called the "construction of a great artificial intestine and
anus" for the city.3
Had the commission done its careful work just a few years
before, its recommendation would likely have been acted on.
However, in October 1893, an event took place in Connecticut
that directly and dramatically affected the outcome of the
Baltimore sewer issue, and established what was to become the
dominant Bay water quality issue of the next fifty years. A
group of Wesleyan College students became ill with typhoid fever
after having eaten oysters.4 Medical science, armed with the
newly accepted germ theory of disease, firmly established that
the oysters were the direct cause of the disease. The incident
received world-wide medical and popular attention, and clearly
sent a shock wave through the Bay oyster industry. For the
first time, what had been a mere theory, scorned by many, that
oysters could cause disease, was now a proven and widely known
fact.5
The oyster industry, represented both by watermen and
packers, voiced forceful objections to the discharge of Balti-
more sewage to the Bay.6 Thus, when the Sewerage Commission
submitted its 1897 report, its entire argument was designed to
offset the objections of the oyster interests, and to demon-
strate that the proposed discharge to the Bay would not cause
harm. The Commission pointed out that the only incidents of
disease came from oysters taken from confined and poorly circu-
lating waters, whereas the proposed discharge would be rapidly
diluted and circulated by the immense volume of water in the
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middle of the Bay. It argued that the cities along the Susque-
hanna were discharging the wastes of over one million people to
the Bay, without ill effect. Furthermore, the oyster beds
closest to the proposed outfall had been seriously depleted or
eliminated by floods of fresh water from the Susquehanna; hence
reducing even further any chance of contamination. Indeed, the
Bay was so productive because of the runoff from the land:
"Your Commission has been advised by an acknowledged authority
on all that related to the biology of the oyster that a dis-
charge of the sewage of the city, as here contemplated, would
be beneficial rather than injurious to the oysters themselves."7
Speaking with the assurance borne of careful deliberation and
sweet reason, the Commission concluded: "There would appear to
be but little reason why the City of Baltimore should deny
itself the facilities and advantages which nature has vouchsafed
to it namely the diluting effect of the Bay, since the Susque-
hanna and other towns are doing it anyway. It would be ridicu-
lous to attempt to prevent it ... . May not Baltimore, as
well, without offense to others, purify herself in the broad
waters of this great bay without thereby disturbing or annoying
any existing interest? Your Commission thinks she may."°
Other, and more potent, interests did not. Although they
apparently did not resort to rhetoric, and therefore have left
us no written record of their argument, the oyster factions
prevailed on the mayor and council to reject the Commission's
proposal. The local medical community was also involved, al-
though apparently of split opinion, one group arguing that there
was no medical risk, the other arguing that pathogens could
survive for long periods of time in both salt water and oysters.
And finally, there were the objections of a small but well-
organized interest group, the night soil contractors who made
their living collecting the wastes from vault toilets and
selling it to area farmers.9
These forces combined to persuade the Mayor and Council to
reject the proposal of the Commission. The Mayor, in his 1897
message to the City Council, pointed out that the City had a
strong economic stake in-the oyster industry, and therefore
should not approve a discharge to the Bay.10 He urged the adop-
tion of "the land filtration technique," an option discussed by
the Commission but rejected because of its high cost relative
to direct discharge to the Bay. This proposal called for
pumping the sewage to the Glen Burnie area in Anne Arundel
County, a few miles to the south of the City. There the wastes
would be used to irrigate and fertilize farmland, a practice
widely used in Europe since about the middle of the century.
The Mayor urged prompt action, exclaiming of the project, "it
must be done.'1,11 The Council agreed to disagree with the
Commission, and, in 1898, the Mayor and Council issued a joint
resolution rejecting the direct Bay discharge approach.12
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The Commission obligingly went back to work and issued a
second report in 1899.13 The members, the same as in the 1897
group, clearly had not changed their opinions as to the sound-
ness of their original recommendation, and they spent some time
in bolstering the arguments for direct Bay discharge. To their
previous list of arguments, they added the observation that much
waste from Baltimore reached the Bay anyway: through exchange
between the waters of the Patapsco and the Bay; through the
disposal form into the Bay of material dredged from the Balti-
more harbor (an observation that presages one of the major
issues of the 1960's and beyond); and, from runoff from farms
that used Baltimore City nightsoil. Furthermore, argued the
Commission, if people wanted to worry about the sanitary condi-
tions of oysters, they should worry about oysters harvested from
the shallow waters near towns on the tributaries of the Bay.
These towns, although not named, surely included Cambridge,
Crisfield, and Annapolis, all of which had sizeable waterman
populations. With a combination of petulence and stiff-necked
pride, they concluded their defense of the dilution approach
by saying: "However, if our fellow citizens are not inclined
to avail of this the dilution method, the natural and most
economical method of disposal, and should determine to have
something else, leaving the economies of the dilution method to
be enjoyed by our neighbors, . . . nothing remains for your
Commission . . . than to point out such other methods as seems
to it available, though it be much more costly to construct and
operate."14
With that final blast, they turned to the alternatives, and
recommended that the best approach was to treat the sewage and
then discharge to the Bay. Other alternatives combined various
treatment strategies and disposal points, as well as the use of
Glen Burnie land disposal for at least part of the sewage from
the southern portion of the city.15
For reasons both political and economical, the City did not
act on this second set of recommendations, and it remained for
the great Baltimore fire of 1904 to clear the way, both physi-
cally and politically, for the construction of a comprehensive
sewer system. (By that time, all other major cities in the
country had done so. But by being last, Baltimore vaulted into
the lead in sewage treatment, as we will describe.) The City
government quickly turned to the Maryland General Assembly to
get the authorization to form a sewer authority and issue bonds
for the construction of a system, an authorization required by
the State Constitution. The General Assembly gave its approval,
but in so doing stipulated that "... said commission, to be
formed under the Act, shall have no authority to construct and
establish any sewage system involving the discharge of sewage,
as distinguished from stormwater or ground drainage, into the
Chesapeake Bay or any of its tributaries.The oyster
interests, in clear control of the matter through the heavy
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representation of tidewater senators and delegates, thus pre-
vented any possibility of the City making use of the Bay for
direct discharge.
Faced with this limitation, the newly constituted Commis-
sion set about once again to examine the alternatives and come
up with a proposal. The first issue was how to interpret the
restriction placed on them by the legislature. A strict reading
would have suggested that no discharge, treated or untreated,
was permitted, but since this was clearly impossible (except
through a total land disposal system), the Commission, by reso-
lution, adopted the following approach: "... that the
effluent proposed to be discharged into the Chesapeake Bay or
its tributaries in the system to be recommended by the engineers
shall be of the highest practicable degree of purity."17
(emphasis added) The Commission turned, for the fifth time,
to the leading sanitary engineers of the Western world, and with
amazing speed and efficiency, in view of the indecisiveness of
the previous forty years, adopted a plan to build a sewage
treatment plant on Back River. The plant, which was to use
sprinkling filters, settling basins, and sand filters, was
recognized to be an unprecedented undertaking. Said one of
the consultants: "No city in our country of the size of
Baltimore has as yet been required to give its sewage treatment
with the object of obtaining the highest practicable degree of
purity."IS And, "We are aware that the works proposed at Balti-
more constitute by far the largest undertaking of sewage
purification in this country." Indeed, when the plant was put
into operation in 1912, it was regarded as one of the engi-
neering wonders of the modern world.
In adopting this plan, the Commission was careful to point
out that "Owing to the small flow of upland water and the
limited range of the tide, there are no strong currents in Back
River, and the effluent so discharged would not, under usual
conditions, reach its mouth for several weeks. We are of the
opinion that there would be no danger from this discharge to
the oyster beds of Chesapeake Bay, and no offense along the
shores of Back River or elsewhere."^ The proposal was checked
out "with oyster authorities" and, with their approval, pro-
ceeded apace.
It is perhaps difficult for the modern reader to appreciate
the unprecedented nature of this commitment to treat the sewage
of a major city discharging to an estuary. Not only was it the
first major city in America to adopt a waste treatment system,
but it did it for a reason far removed from those commonly used
to justify, or require, the treatment of sewage. The strongest
impetus for sewage treatment was probably where such treatment
would help to protect a city's own water supply, as in the case
of.Chicago, which both discharged its wastes (until the develop-
ment of the Chicago canal) and drew its drinkina water from Lake
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Michigan. A second incentive was that a downstream neighbor
drew its drinking water from the river used by another to dis-
pose of its wastes. A third was that an acute nuisance condi-
tion prevailed, that for some technical or economic reason
could not be solved by piping the wastes away from the city.
A fourth was that the disposal of wastes was clearly injurious
to fish, recreation values, or other resources. None of these
reasons applied to the Baltimore situation. Had the wastes
been piped raw to the middle of the Bay, no water supplied would
have been affected, no nuisance conditions created, and, most
probably, no major change to the aquatic life of the Bay induced.
Yet, it was because there was a possibility that pathogenic
bacteria might find their way from a diseased human being to the
Bay thence to an oyster, and finally to another human being,
that Baltimore spent an enormous amount of money to treat its
wastes, before discharging them into a sluggish tidal tributary
of the Bay. As we will discuss, it was not until the late
1930's for Washington, and the 1950's for Norfolk, that the
other two Bay metropolitan areas put sewage treatment plants
on line.
This story is a useful paradigm. It demonstrates the im-
portance of the oyster as the key Bay resource. It illustrates
that it is often political influence, not technical evidence,
that determines the outcome of an issue. It is the first of
many Bay controversies where the technical questions are funda-
mentally insoluable: because it is impossible to demonstrate
that a proposed activity will not have an adverse effect, the
only available proof is to go ahead with the proposal and ob-
serve its effect. Those opposing the change rely primarily on
the argument that an adverse effect is possible, and that it
is not worth the risk to find out whether indeed such a possi-
bility is realized. Finally, it illustrates that it is perhaps
public opinion that is the controlling "fact" in a given issue.
The ultimate concern of the oyster interests was not that
oysters would be killed or that people would get sick from
eating contaminated oysters. It was that people would associate
oysters from the Bay with sewage from Baltimore, make the
connection to the recently established and highly publicized
link between oysters and sewage-borne disease, and then stop
buying Maryland oysters. What was controlling was whether
people would think that oysters from the Bay were tainted.
The Baltimore sewer story is interesting also because
it gives a well documented picture of the process by which the
City officials or, more particularly, their study commissions
and consultants, went about developing their recommendations.
The commission reports of 1897, 1899, 1905, and 1906 reflect a
remarkably efficient, flexible, and sophisticated approach to
the problems at hand. They should probably be required reading
for anyone, professional, citizen, or politician, involved in
contemporary sewage treatment controversies, such as the
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perennial debates involving sewage collection and treatment in
the Washington metropolitan area. They are useful models of
how to bring together the best available technical assistance,
evaluate the recognized alternatives, reach a reasoned conclu-
sion, and present a written report, all in a relatively short
period of time.
Finally, this story illustrates the serial nature of envi-
ronmental problems. The sewer issue began with the adoption of
a public water system for the city. This system is developed in
order to supply pure drinking water, but also for the broader
purpose of improving municipal sanitation and safety through the
provision of water for street cleaning and fire fighting. But,
the increased water supply, together with the adoption of the
water closet (flush toilet), more frequent bathing, and other
amenities of indoor plumbing, all of which can be seen in one
context as environmental advances, created the major problems
of contaminated water to dispose of. The first approach of the
city was simply to move the wastes downstream (i.e., out into
the middle of the Bay). This ran into a competing interest
involving another human health issue, so a compromise solution
was adopted. As we shall see, that "solution" created other
problems, most specifically for Back River, where the discharge
from the Baltimore sewage treatment plant has been viewed by
many as a source of major degradation to the river. The envi-
ronmental linkages that became so much a part of the environ-
mental understanding of the 1970's, were well established and
demonstrated by this issue that ran from about 1860 to 1912.
Oyster Sanitation in Virginia
While Maryland was going through the resolution of a major
water quality issue in the form of the Baltimore sewerage con-
troversy, Virginia was affected in a more insidious way by the
aftermath of the Wesleyan incident. The first effect was that
local boards of health in the Hampton Roads area began to
question the safety of, and then closed to harvesting, some of
the leased oyster beds in the shallow creeks tributary to the
James River,and the Bay. Although the number and extent of
these closings are unknown to us, they appear to have been
relatively small but highly valuable. Official reaction from
the Board of Fisheries was to sneer at those who were agitating
for closure of the beds. "We cannot command language strong
enough to denounce the action of some 'pure food1 faddists. The
scare of 'polluted oysters' has cost the workers in Virginia
not less than one million dollars a year for 3 or 4 years," said
the Board in its annual report of 1910.20 By 1914, it was
stating that the waters of Virginia were almost entirely clean,
but that because of adverse publicity, the industry was being
hurt. Here, as in Maryland, the concern appeared in the early
days to be almost entirely about public opinion. The Board
pointed out that it was difficult for a Bay native to realize
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that "inlanders" were indeed worried about oyster purity because
of the "scare journalism" they were exposed to.21
The next year, the Commission's tone changed appreciably.
Although still labeling it "The Pollution Scare" in its annual
report, it was feeling the direct effect of the market place,
and it suggested action. "While the polluted area is small
... so great is its value, and so damaging its existence to
the entire industry because of adverse publicity, that we deem
it advisable to recommend to the General Assembly the considera-
tion of legislation which will result in the removal of the
cause of the pollution. This can be done by the towns
installing sewage disposal plants."22 This rather indirect
statement of inclination, if not intent, at least shifted the
problem from the "faddists" to the pollution. No doubt the
Commissioners were aware of the sizeable investment made by
Baltimore to treat its wastes. They were at least willing to
suggest that it be considered as well in Virginia.
The Commission also quoted, with approval, several more
emphatic statements about the need to address the source of
pollution in tidal waters. Dr. Hugh S. Cumming, a surgeon with
the newly formed United States Public Health Service, whose
extensive surveys on the Bay area are discussed below, wrote to
the Chairman of the Commission: "It is now recognized that no
community has the right to dispose of sewage in such a way as
to throw unreasonable burdens upon other communities."2-^ Al-
though this seems at first inspection to be a simple restatement
of a long-established common law principle, it was cited by the
Commission as a symptom that times were changing. After giving
passing mention to the fact that Maryland had, in 1914, given
its Board of Health authority to require municipalities to
install sewage treatment plants, the Commission quoted from a
paper submitted by a Connecticut official before the National
Association of Shellfish Commissioners in 1914: "The contami-
nation of tidal waters ... is an evil that ought to be
stopped." "It is a crime against nature, and it is the more
indefensible because it is committed, not by savages or . . .
or . . . [nationalities deleted], but by a highly cultured
people."24 Clearly the Commissioners did not wish to speak with
such rhetorical passion themselves, but they were at least
trying to make a point.
At the same time, the private oyster interests, in the
persons of S. J. Watson and Frank W. Darling, sought legal
remedies. Watson held a private oyster lease for some 11
acres of bottom in Hampton Creek, within the City limits of
Hampton. In 1909, he was informed by county health officers
that the waters were "too polluted to permit the sale of
oysters therefrom," and in 1914 the state authorities, following
a survey by federal health officials, expressly banned the sale
of oysters from the creek. (The ban affected other planters in
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the area, and it appears that Watson brought suit on behalf of
all of them.) Watson thereupon sued the City of Hampton,
claiming that its discharge of sewage was unlawful and consti-
tuted a trespass against his property, for which he should be
compensated. The circuit court ruled in his favor, and awarded
him $4,500 in damages.^5
The case was quickly appealed, and the Supreme Court of
Appeals of Virginia reversed the decision on June 8, 1916, in
a decision containing a number of interesting statements and
principles. The decision hinged on whether the city, in dumping
its wastes in tidewater, could be constrained by the private
interests held by Watson. The court held that the city was
exercising a public function in accordance with state law, and
that this function was superior to any rights granted by the
state for private oyster culture. It pointed out that the
waters and bottoms of the creek, being navigable and tidal, were
"owned and controlled by the state for the use and benefit of
all the public ..." It was, therefore, for the state,
"through the legislative branch of government, to say how much
pollution it will permit to be emptied into and upon its
waters, so long as the owners of the land between low-water
and high-water mark are not injured . . . "26 Since the
legislature had expressly authorized cities to build sewers
for the disposal of wastes, and since it had not required
sewage treatment or otherwise restricted the disposal of
municipal wastes, the City of Hampton was within its rights
and was, therefore, not liable for the damages suffered by
Watson.
Since the state holds its tidal waters and the
beds thereof for the benefit of all the public,
we are of the opinion that the city of Hampton
has the right to use the waters of Hampton Creek
for the purpose of carrying off its refuse and
sewage to the sea, so long as such use does not
constitute a public nuisance . . . The sea is the
natural outlet for all the impurities flowing from
the land, and the public health demands that our
large and rapidly growing seacoast cities should
not be obstructed in their use of this outlet,
except in the public interest. One great natural
office of the sea and of all running waters is to
carry off and dissipate, by their perpetual motion
and currents, the impurities and offscourings of
the land.
The state guards the health of its people for the
benefit and protection of the public at large and
under present sanitary standards sewerage systems
for all thickly settled communities have become
an imperative necessity, a public right, which is
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superior to the leasing by the state of a few acres
of oyster land ... 2/
In short, the court hammered home the principle that sewage dis-
posal was in the public interest, subject only to standards
imposed by the legislature, which governed the use of the tidal
waters in the public interest.
Undaunted by the Watson decision, Darling brought suit
against Newport News for the pollution of Hampton Roads, in
which he held large and valuable oyster leases.28 This time the
circuit court decided for the City, based on Hampton v. Watson,
and the Court of Appeals agreed. The court advanced the strong
pragmatic argument that pollution was an inevitable consequence
of commerce, industry, and large settlements, and that, there-
fore, the legislature, in providing for private oyster culture,
did so on the assumption that the right of riparians to dis-
charge their wastes to the sea was a superior right. The
court said:
The right claimed by the city clearly existed
before the enactment of the oyster law cannot
be doubted, and the Legislature cannot be pre-
sumed to have intended to destroy this ancient
and undoubted public right in the absence of a
clear and explicit statute indicating such a
purpose. We think the more reasonable view of
the statute, that established the private oyster
program, is that it was not conceived that it
would be thought desirable to continue to plant
oysters in an area so certain ultimately to be
polluted ... 29
In other words, use of the waters of the area for oystering is
" . . . subject to the ancient right of the riparian owners to
drain the harmful refuse of the land into the sea, which is the
sewer provided therefore by nature . . . 30 (emphasis adde.d)
Perhaps encouraged by a long and complex dissent written by
one of the justices of the Virginia court, Darling proceeded to
the U.S. Supreme Court. There, in an opinion handed down on
April 28, 1919,^1 Justice Oliver Wendell Holmes made short work
of the plaintiff's case, and in sustaining the decision of the
state court, added the observation that reflects the prevailing
attitudes of the times, as well as the law:
The ocean hitherto has been treated as open
to the discharge of sewage from the cities upon
its shores. Whatever science may accomplish in
the future we are not aware that it yet has
discovered any generally accepted way of avoiding
the practical necessity of so using the great
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natural purifying basin.32
Ignoring the experience of Baltimore or of numerous European
cities in the treatment of sewage, Justice Holmes continued:
But we agree with the court below that when
land is let under the water of Hampton Roads,
even though let for oyster beds, the lessee must
be held to take the risk of pollution of the
water. It cannot be supposed that for a dollar
an acre, the rent mentioned in the Code, or what-
ever other sum the plaintiff paid, he acquired
a property superior to that risk, or that by the
mere making of the lease the State contracted, if
it could, against using its legislative power
to sanction one of the very most important public
uses of water already partly polluted, and in the
vicinity of half a dozen cities and towns to which
that water obviously furnished the natural place
of discharge.33
These cases, beyond laying the claims of the private oyster
lessees to rest, established two things. First, waste placement
was considered to be an important beneficial use of water, a
concept that may seem jarring today, but is explicitly stated
in much Bay literature and popular writings at least up through
the 1950's. Second, the courts made it clear that it was within
the power of the Virginia legislature to require a reduction in
pollution, but that it had not done so.
Litigation out of the way, the situation in Virginia sta-
bilized, so that by 1923 the Commissioners of Fisheries could
say, "As yet Virginia has no serious question of other pollution
on its oyster beds, due to the vastness of our waters and no
cities of large population within our confines."34 The pollution
problem they were most worried about was oil. The "oyster
scare" had become a reality for the private planters whose beds
were affected, but Virginia had neither seen fit to legislate
to restrict waste discharge, or to invest in municipal treatment
plants.
The Federal Presence
During this period Congress was promoting major changes in
conservation and public health. Along with the formation of
the Public Health Service (1912), the Congress authorized the
conduct of studies on the pollution of navigable waters. This
led to an extensive survey of the Bay by Surgeon Cumming, who
described the sanitary condition of the Bay in a report remark-
able for its scope and detail.35 The report confirmed the
commonly held notion that bacterial contamination was largely
confined to the waters immediately in the vicinity of populated
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areas, with the most confined and slowly circulating waters pre-
senting the greatest risk of contamination of shellfish.
Cumming, working with health officials in both states, identi-
fied a number of specific situations that posed a threat to
human health. Many of these dealt with the actual handling of
oysters once harvested, and with the practice of "drinking"
oysters, which involved placing them in fresh or near-fresh
water to plump them for the market (a practice which sometimes
exposed the oysters to polluted water). The federal presence
was, therefore, primarily of a technical assistance and advisory
nature, although the pure food and drugs act of 1906 and subse-
quent acts gave the federal health officials authority to inter-
vene in cases that involved the interstate shipment of contami-
nated foodstuffs.
The Public Health Service was also called upon to perform
a sanitary survey of the Potomac estuary, which it did in 1913-
1914. The oyster interests on the Potomac, representing both
Virginia and Maryland, were concerned that the sewage from the
growing population of Washington, which in 1913 numbered approxi-
mately 320,000, would have an adverse impact on the purity of
Potomac oysters. The survey concluded that there was no immedi-
ate risk to the oysters, since their upper limit was far removed
from the Washington sewer outfall, and the net downstream trans-
port of polluted water was slow, allowing adequate time for
dilution and oxidation of the wastes.36 Thus, the Potomac
estuary was spared the problem that was faced in the Baltimore
and Hampton Roads areas in the early part of the century.
The Illinois Incident and its Aftermath
The stability of the oyster sanitation issue, which is
expressed by the 1923 statement of the Virginia Commission of
Fisheries quoted above, was shattered by a major outbreak of
typhoid in Chicago in November and December of 1924, as well
as lesser but significant outbreaks in Washington and New York.
In all, about 1500 cases were reported, resulting in 150 deaths.
Most of these cases were traced to contaminated oysters, which
caused the State of Illinois to impose an immediate ban on the
importing of raw oysters. The resulting publicity brought the
Bay oyster industry virtually to a standstill.37
The Bay states, as well as the other oyster-producing
states in the nation, quickly joined with the Public Health
Service to establish a program of oyster sanitation that would
restore confidence in the purity of oysters. The approach
involved the formal adoption of bacterial standards for oyster
growing waters, as well as standards and practices for the
handling and processing of oysters from harvest to the market
place. The system, which relies on the Federal Public Health
Service to certify as to the adequacy of state programs, is
still in use today.
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Each state responded quickly to the problem. In Maryland,
there was an immediate move to close beds in polluted areas,
upgrade the sanitation practices of harvesters and packers, and
convince the Illinois authorities that the Maryland oyster was
indeed safe. To that end, the Director of Public Health for
Illinois, Dr. I. D. Rawlings, was brought to Maryland, where he
personally conducted an extensive survey of Maryland oyster
waters and processing plants. He found that, with a few excep-
tions, the waters of the State were clean, and that a set of
specific practices should be adopted by harvesters, shuckers,
and packers, to insure that oysters would not be contaminated
once harvested. So diligent were the Maryland officials that
by October of 1925, the Commissioner of Conservation was able
to report to the Governor that the State could certify its
oyster safe to the State of Illinois, and "that confidence was
returning to the industry."38
At the same time, beds in suspect or contaminated areas
near Cambridge, Crisfield, Salisbury, and Annapolis were closed,
and a campaign was launched to eliminate or improve toilets,
privies, and pipes that were discharging sewage to tidewater.
After a couple of years of effort, the total restricted area
was reduced from several thousand acres to 1288 by January 1,
1928, more than half of which were in the Severn River, near
Annapolis. Clearly Maryland had weathered the crisis, and was
able to shift its attention back to the perennial issue of
whether to expand the private culture of oysters, an issue that
preoccupied state officials and members of the General Assembly
throughout the first half of the century.
Stimulated at least in part by the oyster sanitation issue,
Maryland also launched a sizeable campaign to build sewage
treatment plants in its tidewater towns. By 1934, it claimed
(for the whole state) that 68% of the population was served by
sewerage, and that the sewage of 57% received some form of
treatment, "a record not surpassed by that of any other state
in the United States."39 jn that year alone, $4.4 million was
spent on sanitary projects, most funded by aid from the U.S.
Emergency Public Works and Civil Works Administrations, two
depression-era sources of assistance.
Virginia also moved quickly in response to the Illinois
incident, but its problem and its solutions were markedly
different from those of Maryland. Because the center of the
Virginia oyster industry was so close to its largest tidewater
metropolitan area, the stricter sanitation standards adopted in
1925 resulted in the closing of a much larger area than in
Maryland, where, it may be remembered, the largest concentration
of people, in Baltimore, were many miles removed from productive
oyster grounds, and the sewage of that city had been undergoing
treatment for over a decade. Virginia closed 8.3 thousand acres
in 1925, 16 thousand more in 192 6, and 13.7 more in 1927. By
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1933, a total of 38 thousand acres were "condemned," of which
approximately 12,000 were considered to be productive.
Although Virginia launched a campaign to eliminate problems
in non-sewered areas, it was clear that its primary problem was
the result of untreated sewage discharged by the municipalities,
military installations, and other government facilities of the
Norfolk-Hampton-Newport News area. Thus, the problem was
solvable only through the installation of sewage treatment
plants, a program that had to gather additional political sup-
port and economic feasibility before it was finally undertaken
after World War II. But, although there was little concrete
action in Virginia, there was a great deal of talk, much of it
of considerable historical interest.
As might be expected from previous quotes, the Fisheries
Commission apparently confined itself to lamenting the state of
things that caused the closing of " . . . the greatest oyster
producing territory that ever existed or will exist in the whole
world." Although there were, no doubt, unrecorded efforts to
address the situation, the commission appeared resigned in 1929,
when it said, "It [the Commission] never expects to see Norfolk
and Portsmouth provide sewer [sic] disposal plants for the
relief of the shellfish industry. These cities may do it in
years to come for health conditions and sanitary improvements
along their waterfronts."41 in other words, the cities were
acting (or failing to act) and the oyster industry could not
muster sufficient clout in the legislature to cause them to do
otherwise. The next year, when the bed closings reached 30,000
acres, the Commission's apparent passivity matched its concern.
"This is a problem so great that it staggers the best thoughts
and energies that can be employed . . . "42
The General Assembly did, however, address the issue when
it appointed a commission to study the pollution of tidal
waters. This group, known as the Spatley Commission, reported
to the General Assembly in 1928, but no direct statement of its
findings or recommendations was located during this study. What-
ever its findings, however, the General Assembly took no action,
except that in 1930 it authorized the City of Newport News to
issue bonds to construct a sewer and, if the city so chose, a
sewage disposal plant, to prevent the pollution of Salter's
Creek, the body of water that received most of the wastes from
Newport News when Darling sued the city in 1918. The city chose
not to build a treatment plant, but proceeded with plans to
build a new sewer outfall in Hampton Roads some 2,000 feet from
the low water mark, to replace the main city discharge into
Salter's Creek proper. In effect, the city was adopting the
dilution strategy, by proposing to move its outfall into a
body having a large volume of water and substantial currents to
disburse the wastes.4 3
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At this point, the executive branch, in the person of the
Attorney General, acting on behalf of the Governor, sued the
city, requesting the court to require the city to install a
modern sewage treatment plant, eliminate its discharge to
Salter's Creek, and abandon its plan to discharge untreated
sewage into Hampton Roads. That made the suit extraordinary
in that, in effect, the executive branch was suing the General
Assembly for failing to exercise its responsibility for protec-
ting the public interest in tidal waters, specifically the
rights of public fishing and the right to water clear enough
for recreational use. In its brief, the Executive Branch
claimed:
The General Assembly is the department of the
government to which the administration of this
property (the tidal waters and bottoms of the
state) is committed, but the state as such is
the trustee; and no alienation or disposition
thereof by the General Assembly is legal which
does not recognize and is not an execution of
the trust upon which it is held for the people,
nor is any use thereof by sufferance of the
General Assembly legal which substantially im-
pairs the common rights of fishery or other
common rights of the people therein. It is the
duty of the General Assembly to make proper
provision for the protection and enforcement of
the common rights of the people in the tidal
waters. But if it authorizes, permits, or
suffers an individual or municipality to use
the tidal waters ... in such a way as to
destroy or substantially impair . . . the right
of the people ... it is the duty of the execu-
tive department of the state government to invoke
the aid of the judicial department to restrain
the individual or municipality from so doing.44
In a lengthy and fascinating opinion, the Virginia Supreme
Court upheld the decision of the Circuit Court of Richmond,
which had dismissed the suit (i.e., decided for the city). The
court basically found that the concept of public trust, as
argued by the Attorney General, did not apply.45
The reasoning behind this opinion runs to nearly 10,000
words, and explores some dark and dusty corners of constitu-
tional law, but in sum the court concluded: the right of
fishery was something that the General Assembly could restrict
or impair, so long as such action was in the public interest;
the discharge of untreated wastes into tidal waters, following
the arguments of Darling and Watson, was a public beneficial use
of long standing; and the General Assembly, by expressly giving
Newport News the authority to build a sewer to discharge into
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Hampton Roads, while neither expressly nor impliedly requiring
treatment, "must be construed as authorizing Newport News to
discharge its sewage into the Roads untreated." In short, the
benefits of waste disposal and fishery are equal in status, and
the restrictions and limitations to be placed on these several
uses are questions committed by the Constitution to the dis-
cretion of the legislature free from the control or interference
of either the executive or judicial department of the govern-
ment. 46 Clearly the fisheries interests, both public and pri-
vate, would have to fight and win their battle in the General
Assembly. With closures of oyster beds to reach 60,000 acres
by 1934, they must have wished for some of the political clout
of their fellow watermen in Maryland, where the oyster interests
had forced Baltimore to treat its sewage on the mere suggestion
that it might hurt the Maryland industry.
In 1934, the legislature once again received a report from
a pollution study commission, which had been appointed by the
governor at the request of the General Assembly "to study . . .
the most practical and economic methods of controlling the
pollution of [Virginia] waters." The commission submitted a
brief and pointed report, in which it urged the creation of a
"Commission of purification of waters," to be given powers to
prohibit pollution, float bonds for the construction of sewage
treatment facilities, and approve discharges.4^ The commission
was emphatic in its position. "No language used in this report
in describing the existing conditions need be considered as too
strong. It is, therefore, urged and insisted that the most
careful consideration be given to the conditions outlined here-
in. "48 in outlining the problem, the commission addressed not
only the threat to the fisheries industry, but warned that
bathing beaches were forced to close, "property values and
tourism destroyed, health threatened, and terrible economic
waste created."49
The passion of the majority of the commission was more than
matched by the unanswered logic of a dissenting member of the
commission, a Mr. J. C. Biggins, who wrote an opinion equally as
long as the majority, and apparently to more effect because the
legislature again took no action.. His argument could serve as
a model for anyone wishing to oppose public investment in waste
treatment, because it contained just about every imaginable
argument. He first asserted that the public cost would be very
high, and that there was no guarantee that the situation would
be much improved, in that there were numerous sources of pollu-
tion for which there was no feasible control. He cited as an
example the situation in Baltimore, where, despite investments
of over $20 million, one could still not swim or fish in
Baltimore Harbor. Furthermore, even if substantial improvements
could be made, there was a question of whether it would be in
the economic interests of the area. Expensive requirements for
waste treatment might put the port at a competitive disadvantage
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relative to more liberal (i.e., permissive) areas. Would it not
make more sense, he argued, to recognize a de facto situation and
zone the Hampton Roads area for commerce and industry, thereby
excluding any claims against these activities by other users
(except, presumably, matters pertaining directly to human health
or common law nuisance)?50
No doubt the issues were further debated, both in the legis-
lature and without, but of direct evidence of that discussion
we found none. In 1938, however, more than 30 years after the
"oyster scare" first surfaced, the Virginia legislature created
the Hampton Roads Sanitary District, giving this regional body
authority to raise money, construct and operate sewage treatment
facilities and sewerage systems, and control pollution in the
Hampton Roads area.51 The work of the District was largely
interrupted by the war, so that its activities are to be dis-
cussed in the next section dealing with the period 1945 to 1960.
Industrial Pollution
Although oyster sanitation and domestic sewage disposal
were the dominant water quality issues of this period, there was
a continuing concern for industrial pollution in the Bay area.
In general, these concerns are less dramatic and less well-
documented than the great oyster issue. Involvement of govern-
ment with industrial wastes was scattered both in time and
space, reflecting the fact that industries themselves were
widely dispersed and were relatively small. As industries grew
in size and complexity, and as they tended to become more
concentrated, they came to be seen as more of a problem, and
thereby drew the attention of government. It was not until
after World War II, however, that industrial pollution took on
its modern role as a major villain (whether justified or not).
In the period at hand, industry was cast in the role of a bit
player, which occasionally showed its potential for stardom,
but did not gain notoriety until the end of the period. As
with the oyster story, we will follow these appearances in each
of the two Bay states.
The term "industrial wastes," is a broad and inclusive one.
Industries range in the character of their wastes from tomato
skins from a canning factory to the complex man-made chemicals
from a plastics manufacturing plant. For this period we will
also apply the term to the oil pollution caused by ships using
the Bay. Given this range, however, three things stand out
about the problems associated with industry: first, oil was
seen initially as the major problem for the Bay proper; second,
food processing plants were by far the most numerous and most
noticeable sources of industrial problems; and, third, the
problems other than oil tended to be associated with free-
flowing streams or restricted tidal waters, rather than with
the Bay itself, although there are some notable exceptions that
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will be discussed. In general, the 1980 popular image of a
giant industrial complex hovering over the Bay, with huge
pipes spewing forth wastes, is inappropriate to this period.
More likely, the industry was a small building employing a few
people, and the wastes were shoveled or dumped by hand. In most
cases, the wastes were not exotic and lethal; they were mostly
familiar, if unsavory things like slaughterhouse offal, brewery
mash, milk by-products, or chicken scraps.
Through the nineteenth century, as we have described, there
was mounting concern for the decline of certain kinds of fish in
the Bay and its tributaries. At the turn of the century, the
Maryland Commissioners of Fisheries laid the blame squarely on
industry, the first such public utterance that we have found.
"We also desire to express our opinion in this report as to the
enforcement of local and state laws prohibiting the pollution of
streams with chemicals, refuse from canning houses, sawdust, and
other stuff injurious to the maintenance of good fishing in our
rivers, either by anglers or net fishermen. Complaints have
been pouring in upon us for a year or more that the refuse from
tomato canning establishments dumped into several rivers were
ruining the fishing, and the falling off in the catch dates
with the location of the canneries on the river banks."52 Since
this was a period in which truck farming and canning were at
their peak in Maryland, the problems were both relatively new
and intense. The Commissioners also commented on the restricted
or reduced runs of shad, a topic of concern in both Bay states
since about 1830, and identified pollution as one of the prob-
able causes. Surgeon Cumming, in his 1914-1916 survey of the
Bay, also made note of canning wastes, and quoted an early State
Health Department report that described the foulness of the
Cambridge Harbor during canning season. "Such a siltation is
indefensible and should be tolerated no longer by the citizens
of the city," it said.53
Despite this expression of concern, nothing tangible was
done by the state until 1914, when the Health Department was
given authority to control wastes from industries when their
discharges constituted a threat to human health or a nuisance .5^
This somewhat restricted authority was followed in 1917 by a
statute that gave the Conservation Commission the authority over
discharges that were injurious to fish and other aquatic life.55
This statute, which appears to have been sometimes vigorously
implemented, and sometimes virtually ignored, gave the State,
in the words of one official, "powers for undertaking the great
work of making the waters of the State fertile for the growth
of fish and shellfish life."56
The Conservation Department and the Health Department
jointly addressed the industrial problems in the twenties and
thirties, and by the late 1930's were joined by another impor-
tant participant, Chesapeake Biological Laboratory at Solomon's
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Island. The style of dealing with the problems can be charac-
terized as one of cooperation and persuasion, reflected by a
statement of the Conservation Department made in 1922. After
outlining the nature and scope of the problem, it said: "The
Commission does not in any way desire to put any restraint or
additional hardship by way of expenditures upon the local
capital invested [in industrial plants], but it is necessary
that the rivers and streams which empty into the Bay should be
cleaned of pollution . . . where pollution is found, there will
be an endeavor on the part of the Commission to solicit the
cooperation of the industry concerned to stop the pollution.
By this method we believe pollution can be curbed to a large
extent."57
In the same annual report, there was a discussion of the
state of the art of industrial waste management. The National
Association of Fisheries Commissioners had been studying the
problem for years, and were recommending an emphasis on recla-
mation or recycling. The Health Department pursued this
approach with considerable vigor, as reflected in its annual
reports of the same period. A Baltimore Sun feature article in
1930 described the progress being made in Curtis Bay, a largely
industrial area south of Baltimore. It described a number of
specific cases where the Health Department had worked with
industries and had suggested ways in which changing processes
would both reduce pollution and save money.58
Curtis Bay continued to be a focal point of Maryland atten-
tion in the 1930's. Frequent fish kills and complaints from
area residents kept government officials and industries
searching for causes and solutions. One of the more intractable
problems was a large paint pigments firm, which produced a
highly acidic discharge. The Health Department worked with the
company to develop a new process by which the wastes could be
reduced. The planned changeover required, as a temporary
measure, the discharge of the wastes directly to the Bay. The
Health Department agreed with the opinion of the consulting
engineers working for the firm, that the discharge would have
no adverse effect on oysters and other aquatic life. The
Conservation Department, however, was not persuaded, and
"declined permission" for the project.59
This situation, which was eventually resolved to everyone's
satisfaction by the adoption of a new process, reflected two
most interesting aspects of the Maryland approach to industrial
wastes during this period. First, it is clear from this epi-
sode, as well as others like it, that state officials had a
powerful influence on industrial activities. While statutory
authority was limited and the staff small, state officials were
directly involved in approving or modifying industrial dis-
charges. This was a far more activist program than appears to
have been appreciated by later students of the Bay, particularly
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in the 1960's and 1970's. It appears that the primary limita-
tions on the program were the limited scientific and technical
capabilities then available to study specific problems, rather
than any fundamental limit in statutory authority or official
concern.
Second, there runs throughout the interplay between the
Health Department and the Conservation Department two somewhat
contrasting approaches to problems, which will be seen again in
later periods and discussed in the concluding sections of this
report. The Health Department took what for simplicity might
be known as an engineering view, while the Conservation Depart-
ment took a biological view of the issues at hand. The former
tended to be more pragmatic and empirical, stressing doing what
was feasible and then seeing what the results were, while the
latter tended to be conservative, stresses potential damage due
to little-understood or unknown chemical-biological relations.
This contrast, which admittedly requires some interpretation to
isolate from the limited documentation of the time, becomes one
of the dominant issues regarding the Bay in the late 1960's.
Industrial wastes from food processing plants proved to be
generally less amenable to correction by the techniques de-
veloped by the Maryland official team. In many cases, there
simply were not effective and economical techniques available
for dealing with a particular waste. In others, the small
size of the operation, and its marginal economic status, and,
in the case of canneries, its seasonal nature made it difficult
to require installation of an effective waste disposal system.
As a consequence, distilleries, canneries, and milk processing
plants were each identified, at different times, as the major
water pollution problem facing the state.
By the late 1930's, however, there was a general note of
optimism and progress among Maryland resource officials. With
the revival of industrial activity following economic improve-
ment in the mid-1930's, the Conservation Department found that
it had more complaints to investigate. Far from being con-
cerned, the Commission used this fact as an occasion to report:
"The Department has been very diligent, and in investigating
these complaints, have notified the owners of these industries
that the pollution must cease. The Department is glad to note
that in every instance, the officers of the corporations readily
cooperated with the Department, and in some instances, have
gone to considerable expense to see that no refuse from their
factories would, in any way, pollute or destroy the fish life
in the waters of the State. The Department feels that they
have been successful in protecting the State's waters."60 a
few years later the long-time State Game Commissioner Lee
LeCompte spoke of the great progress that had been made in
eliminating industrial pollution, calling it " . . . the near
extinction of a major nuisance."
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And the Health Department, in its reports, stated of ac-
tivities in the Curtis Bay area, which had received the most
concentrated attention in the State: "The officials of the
industrial plants in the area and the Conservation Commission
are to be commended for their splendid cooperation." And of
industries generally, "It has been gratifying to note the
recent interest, displayed by manufacturing officials generally,
in the matter of stream pollution."62
In 1936, the statutory authority of the Conservation De-
partment was used in court, apparently for the first and only
time, resulting in the levying of a $900 fine against the Owings
Mills Distillery, Inc., for the release of caustic soda into
Jones Falls.63 The case was hailed as a landmark, because it
demonstrated the legal backing available should an industry
prove recalcitrant. However, the prevailing effort as expressed
throughout the period was to resolve industrial pollution
problems through cooperation. Speaking generally, but clearly
with the Maryland experience in mind, Dr. Abel Wolman summed
up this approach as follows:
If any specific feature has been responsible for
progress [in water quality control] in many of
the states, it has been the existence of one or
more informed officials who have had sufficient
energy and wisdom to carry the program forward
by cooperative activity with industry and munici-
pality. Only rarely in such progressive areas
has it been necessary to invoke the law.64
By the onset of World War II, the Maryland program of
control of industrial effluents and the building of municipal
sewage treatment plants was a source of pride. It was the
opinion of many that it was a national leader in the field,
and it may indeed have been. Certainly, there was a great
deal of effective activity by a very small staff, and 25 years
had seen the establishment of legal basis for action followed
by a program that involved the Health Department, the Conser-
vation agencies, and the-research establishment in a coopera-
tive routine.
By the end of the period in 1945, the operating question
was, "Given the successes of the Maryland program, was it
enough?" A number of symptoms appear in the record to suggest
that the answer was no, an answer that was arrived at officially
in 1947, as we shall see in the next section. Perhaps the most
poignant concern was expressed by R. V. Truitt,. the long-term
director of the Chesapeake Biological Laboratory. CBL has been
doing pollution-related studies in the Curtis Bay and Baltimore
Harbor areas since the early thirties, and by the latter part
of the decade was looked to by the conservation agencies as
the majcr source of expert information. Consistently,
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Dr. Truitt and others at the lab had pointed out the assimila-
tive capacity of the waters of the area were great, and that
there was no evidence that industrial wastes were having an
adverse effect on economically important resources. In making
this statement in 1940, Dr. Truitt stated: "... more
extensive study is planned on the problem of possible accumula-
tive effect of continued discharges of wastes upon the delicate
biological balance of Bay waters and the relationship of these
changes to conservation."65 (emphasis added) Here is sounded,
perhaps for the first time, the warning that has been so much
a part of the ongoing debate about the quality of the Bay since
the late 1960's. The CBL scientists were aware of the large
quantities of wastes being discharged to the Bay in the Balti-
more area, and while they were also aware of the tremendous
assimilative capacity of the receiving waters, they also won-
dered whether other things were going on that might have gone
undetected.
Various groups of citizens were concerned about other more
palpable issues. Through the first half of the 1940's, a number
of incidents and conditions occurred or pertained that raised
questions as to the adequacy of the State's program for indus-
trial and municipal pollution control. The residents of Curtis
Bay and Back River, in particular, were not persuaded that
progress was being made. Newspaper accounts during that period
speak of fish kills, nuisance conditions, and generally
unacceptable conditions, and it can be inferred from the degree
of official attention to these areas that the level of com-
plaints was relatively high.66 a 1942 fish kill in Curtis Bay
resulted in the official explanation that it was part of a
broader fish kill that was probably not related to any man-
induced condition. In the same period, the Health Department
pointed out that the unpleasant conditions in Back River were
due, not to industrial pollution, but to "profuse growth of
algae due to high organic content of the effluent from the
Back River STP." And the Baltimore Inner Harbor had once again
achieved notoriety as a seriously polluted body of water.67
More generally, indeed state-wide, the conservation and
sportsman's groups were starting to aggregate for more effective
action against industries. In 1935, forty-four conservation
organizations and other groups united to form the Maryland Out-
door Life Federation.68 The federation promptly began to lobby
for a change in the organizational structure of the conservation
agencies of the state, and also for the establishment of a
Board of Pollution Control. In 1938, a committee on Bay pollu-
tion was formed, that pushed for greater recognition of
potential and real problems faced by the Bay due to the growth
of population and industry. The Isaac Walton League, repre-
senting fishermen for the most part, kept pressure on for the
protection of freshwater streams, and they were quick to use
fish kills in the Bay or tangible instances of industrial
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pollution as evidence that a greater level of control was
needed. Although the war years tended to reduce the intensity
of this pressure, it was there ready to reassert itself after
the war.
Virginia's experience with industrial pollution differed
in several important respects from that of Maryland. The
differences, although expressed in the legal and bureaucratic
framework of the time, had their origins in the differing geog-
raphy and varying emphasis on the uses to which the Bay was put.
Virginia did not have the industrial concentrations that Mary-
land had in Curtis Bay, Baltimore Harbor, and Sparrows Point.
On the other hand, it appears to have had a greater problem
with industrial pollution of inland streams, than did Maryland,
so its attention was largely in that direction. Its rapid
growth as a shipping area and Navy port raised oil and dredged
spoil as issues of more prominence than in Maryland. And its
reaction to the deterioration of streams due to pollution was
of long standing, but was inexorably tied to other issues such
as overfishing, stream blockage due to dams, and land run-off.
The Virginia record concerning industrial pollution during
the period 1900-1945 is not as extensive or clearcut as that
of Maryland. Virginia did not have the industrial concentra-
tions similar to those in Curtis Bay or Baltimore Harbor.
Perhaps partly for that reason, it did not establish a clear
legislative framework for action, as did the Maryland statutes
of 1914 and 1917. Virginia's concerns during that time were
apparently more directed to industrial pollution of inland
streams. Nevertheless, there were a number of specific develop-
ments in Virginia during this period that concerned industrial
pollution, and many of them are important as precursors of
the major Bay pollution issues of the last two decades.
Virginia's experience during this time is therefore no less
interesting than Maryland's, even if somewhat briefer.
Virginia officials had long been concerned over the decline
of shad and other anadromous fish in her rivers. These declines
were attributed to various factors, including dams, overfishing,
and agricultural practices, but there was also recognition that
industrial wastes were blocking the passage of fish. Numerous
laws were enacted during the nineteenth century to prohibit the
discharge of various polluting substances into the streams of
the states. For the most part, the language specifies free-
flowing streams, but it is clear that one of the major concerns
was the effects of wastes on anadromous fish from the Bay (and
ocean) as well as concern for resident inland fish. These
statutes were enforceable primarily by the local law enforcement
officials; no bureaucracy was established to implement or over-
see them. Characteristically, they show more concern for the
deliberate poisoning or killing of fish, than for the uninten-
tional effects of industrial wastes, although both categories
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are covered.69
In the first part of the century, the wastes from a pulp
mill in Richmond drew attention, and resulted in an extensive
study of the situation, which recommended a combination of civil
common law remedies and new legislation to alleviate what were
considered to be unacceptable nuisance conditions.70 The con-
cerns that prompted this study were primarily those of residents
along the banks of the river, rather than for the fish life in
the river. Nonetheless, this study, which resulted in no
definite action, represents the first investigation of tidewater
industrial pollution located during the course of the present
study.
With the marked increase in shipping in the lower Bay, the
problem of oil from ships came into prominence and for a number
of years was seen as the most serious pollution problem in the
Bay. The oil came from the practice of ships pumping ballast
water from their bilges as they entered the Bay to take on cargo.
The problem in the lower Bay was aggravated by the presence of
a large number of Navy ships, and also because the ships heading
for Baltimore would begin to pump their bilges as soon as they
entered the protected waters of the Bay from the open ocean.71
The concern was felt by resort and property owners along
the shores of the lower Bay, as the many fine beaches of that
area were occasionally fouled by oil. But it was the
Commissioners of Fisheries who expressed the strongest opposi-
tion to this practice. Although their attention had been
directed to the oyster sanitation issue for some years, in 1919
they were to say: "One of the greatest questions for the
future is that of pollution. The pollution by sewage of our
ever increasing population and the waste from our rapidly
growing industries is affecting the entire fish and oyster
industry in and around Hampton Roads, but of all the destruction
caused by pollution that from oil waste is the worst."72
(emphasis added) They pointed out that oil, unlike sewage,
affects not only the mature oysters themselves, smothering them
or making them unpalatable, but it also interferes with the
plankton that is the food for oysters, and directly kills
oyster spat when it is part of the plankton (plankton are
floating plant and animal organisms that are largely incapable
of motion; oyster spat larvae are part of this plankton until
they settle and attach to some hard surface on the bottom).
Thus the Commission, in a statement remarkably similar to
the broad environmental concerns of the late 1960's, pinpointed
a clear enemy for the organisms of the Bay. This concern was
shared by the other Eastern states, including Maryland, and
their combined action led to the passage of the Federal Oil
Pollution Act of 1924.73
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How effective this act was is not discernable from the
records we examined, but its passage coincided with the "Illi-
nois incident" which quickly vaulted oyster sanitation ahead
of oil as a major concern. The Fisheries Commission, after
commenting on it for a number of years, gave it no mention in
its annual reports thereafter. However, it received mention in
a 1935 report by the Virginia Planning Board as a significant
problem, and was still a major issue in Maryland following World
War II. For this period, however, it was an issue that both
states conceded was the responsibility of the federal govern-
ment. It therefore marks the first instance of a direct
regulatory role by the Federal government in a water quality
issue of the Bay. This modest beginning, of course, gives no
clue as to the major growth of federal involvement that took
place in the latter part of the 1960's.
In 1930, there was a massive die-off of oysters in the York
River, beginning a controversy regarding the effects of indus-
trial wastes that persists to this day. A large pulp mill at
West Point was suspected of being the cause of the die-off.74
Government officials in Virginia and their representatives in
Washington sought the aid of the U.S. Bureau of Fisheries, which
established a laboratory at Yorktown "solely for the investi-
gation of industrial pollution in the York River."75 The study
was carried on for most of the next decade, and although there
was a steady decline in oyster productivity in the area, and
the pulp mill wastes were "definitely implicated," there was no
government action taken to abate the wastes while the scientists
sought to determine the specific causal agents of the decline.
Government at the state and federal levels apparently felt it
necessary to prove that there was a direct link between the
discharge and the observed declines, before requiring remedial
action. Such proof was not forthcoming.
What did emerge from the study was the recognition that
the state needed a research capability to address the kinds of
questions raised by the York Pulp Mill, as well as to address
the broader questions of management of Bay species. After the
Federal government pulled out of its York River studies, the
State of Virginia and the College of William and Mary estab-
lished the Virginia Fisheries Laboratory at Yorktown, with
Curtis L. Newcombe as its director. The laboratory took up
from the Marine Biological Laboratory the task it had adopted
in its last years, which was "... to find ways and means for
improving the tidewater fisheries resources of Virginia . . . "76
Thus, while the oyster die-off on the York remained perplexing,
the trade wastes of the pulp mill led chronologically, if some-
what tangentially, to the state laboratory, later renamed the
Virginia Institute of Marine Science, that was to play a major
role in pollution issues after the War.
Virginia also faced an industrial issue in the late
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thirties and early forties, the resolution of which freed her
from difficulties that were later experienced by Maryland. The
issue was dredged spoil disposal, a perennial matter of concern
on the Bay. The approach channels of Hampton Roads and the
port areas required periodic dredging, both to remove accumu-
lated sediment and to increase the size and depth. Prior to the
thirties the practice in the lower Bay had been to dispose of
the dredged material overboard in the shallow areas of the Bay,
where it would be distributed by the currents and eventually
settle out. Watermen and property owners began to object to
this, claiming that it caused adverse effects either through
mechanical smothering or it transferred polluted bottom sedi-
ments from the harbor area to the open Bay, where it would
contaminate oysters and foul beaches.77
In 1940, the Congress directed the U.S. Army Corps of
Engineers to study the situation and develop a solution. The
Corps came back in 1944 with a proposal to dike a large area on
the south side of the James River just to the west of the
Elizabeth River opposite Norfolk. The diked area would receive
the dredged spoil from all the public and private navigation
projects in the area. At a public hearing on the project in
1944, some nearby oyster leasees objected that the effluent
from the spillways draining the project would pollute their
beds. On the basis of this, the Corps required that the state
cancel the nearby oyster leases, and hold the Federal government
harmless for any damages done to oyster grounds in the vicinity.
The project was approved by Congress in 1946, and built between
1954-1957.78
By so resolving the issue of dredged spoil disposal, Vir-
ginia interests were able to eliminate it as an important issue
thereafter, thus avoiding one of the most vexing and time-
consuming controversies that faced state and federal officials
in Maryland from the early 1960's to the present.
The Bay as a System
This period, from 1900 to 194 5, marked some important
shifts in the perspective of Bay officials and scientists with
respect to the biology and management of the Bay. During this
period both states established Bay laboratories to conduct
research on water quality and Bay management issues. These
laboratories, along with the Chesapeake Bay Institute, estab-
lished shortly after World War II with the sponsorship of both
states, became the focal points for studies that attempted to
understand the Bay as a biological and physical unit, trans-
cending political boundaries or the functional boundaries of
interest groups.
The scientific perspective of the Bay as a unified but open
system was addressed in a variety of ways. One of the most
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interesting statements, with considerable relevance today, was
made by a Canadian scientists who reviewed the work done at
Solomons up to the early 1940's.79 A. G. Huntsman suggested
that the Bay was an extremely complex and open system, and that
long and careful study would be necessary before it could be
managed intelligently as a unit. In the meantime, however, it
would be necessary to have "... investigators prepared to
brave the criticisms of the academic theorists . . . These
investigators should not hesitate to draw preliminary conclu-
sions from limited facts ... "80 other words, although
science was going to progress slowly in unraveling the secrets
of the Bay, the needs of management for scientific guidance
would not wait, and therefore there needed to be courageous
"directed research."
Huntsman also stressed the openness of the Bay system. He
discussed the influence of land drainage from the large water-
shed area draining to the Bay, and pointed out that much of what
went into the Bay started its journey from well outside the
tidewater area. He also reminded his readers of the ocean
connection, saying: "The Bay is very far from being a discrete
productive unit, since there is said to be extensive movement
of the fishes out from and back into the Bay."81 of man's
activities, Huntsman sounded a rather striking view, and related
directly to the controversy then underway with regard to the
effects of the York pulp mill effluent: "It is perhaps axio-
matic that the changing character of the fisheries of the Bay
is determined mainly by changes in the physical chemical
conditions of the Bay. But we are prone to think first of
man's actions, of the psychology [physiology?] of the fish,
and of biological factors, and to overrate the probability
of these being responsible for any change in a fishery."82
In other words, one should respect the fact that the Bay is
subject to large naturally occurring changes and that man's
influence in relation to these might be relatively small. At
about the same time, Dr. Truitt of the CBL was suggesting that
the Bay was a delicately balanced system, and that man's
activities might be having a subtle cumulative effect.
Bay managers, in 1933, expressed a clear understanding that
the Bay had to be considered as a single resource unit, and
managed accordingly. In October of that year, an interstate
conference on the Bay was held,83 the first of many conferences
to discuss the management of the Bay. The conference pro-
ceedings are of interest in that they give a reasonably accurate
picture of what was on the minds of the resource managers of
the time. Most strikingly, a number of speakers sounded a
theme so common today that the Bay is a national treasure,
that it must be viewed and managed as a single system, that
man's activities must be carefully monitored and controlled,
and that some sort of interstate body should be established
to deal with the management and protection of the Bay. Although
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by no means all speakers addressed these issues, they were stated
enough to suggest that such ideas were no means rare or radical.
The concept of the Bay as a system was thus well estab-
lished by the 1930's, both in the minds of managers and scien-
tists. It remained for a later period to take direct govern-
mental action on the basis of this concept.
Other Management Issues
This discussion of the Bay, centered as it is on water
quality issues, should not obscure the fact that water quality
was not the issue of dominant interest and government attention
from 1900 to 1945. That prize would have to go to fisheries
production and marketing issues, which, although affected by
water quality issues, were to a large degree independent of
them. This is particularly true in Maryland, where the dominant
political issue was that of the management, or alleged mis-
management, of the oyster resources of the Bay.84 There were,
as discussed above, a number of competing interests who fought
for legislative and administrative power over control of the
oyster rocks and barren grounds of the Bay. The recurrent
question was whether private oyster culture should be supported
and encouraged in Maryland. This issue, it may be remembered,
had been largely settled in Virginia before the beginning of the
twentieth century. According to critics of the Maryland
approach, the Virginia balance between public and private oyster
culture had allowed her to surpass Maryland in productivity,
even though her grounds were not as extensive or productive.
Since 1884, Maryland fisheries officials had argued that the
Bay was a tremendously productive body of water, capable of
producing far more oysters than occurred naturally. The
institution of oyster farming, following methods developed in
France, could make them both commercial and sport species.
Maryland, for example, imposed a prohibition on the purse
seining of menhaden, arguing that menhaden were the bait fish
that attracted large numbers of more desirable predator fish
to the upper Bay. Virginia, on the other hand, allowed this
efficient method of harvest of menhaden, and a thriving
menhaden fishery was established in the lower Bay.91
In short, there were numerous issues other than pollution
to occupy the time, energy, and political capital of the various
Bay interests in both states. While pollution was certainly
an important issue, it and its logical successor, the over-all
quality of the Bay, was not the dominant issue in the minds of
public officials or the public for at least another 15 to 20
years.
By the close of this period, significant advances had been
made in the public programs dealing with water quality in the
Bay. Each Bay state had established a laboratory to do the
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basic and applied research so necessary to the attack on pollu-
tion issues. Both states had dealt with municipal sewage, so
that a substantial portion of the tidewater population was
hooked to a sewage treatment plant. On the industrial front,
there had been considerable work, particularly in Maryland, to
effect in-plant changes to reduce the effluents to the waters of
the Bay, and there had been numerous attempts to address the
difficult scientific, technical, and economic problems posed by
industrial effluents and their control.
Despite this activity, there was a clear opinion that the
situation was growing steadily worse. Growth in population and
industrial activity had simply outstripped the activities of the
governments of the two states. Whether there was actually less
or more wastes reaching the Bay in 1945 than in 1900, our
research would not allow us to say. Whatever the facts, there
was definitely a growing concern among the citizenry of both
states, particularly among sportsmen's groups. Pollution of the
Bay, and more specifically of many of its tidal and non-tidal
tributaries, was seen as a major and growing problem. The
result was the establishment in both states of pollution control
agencies, charged with the responsibility to address pollution
and its control on a sustained basis. The development of these
programs is the major feature of the next section, to which we
now turn.
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Section V Notes
1. James B. Crooks, Politics & Progress: The Rise of Urban
Progressivism in Baltimore 1895-1911. Louisiana State
University Press, Baton Rouge, 1968, pp. 132-154.
2. Report of the Sewerage Commission of the City of Baltimore,
1897, Baltimore.
3. Maryland State Board of Health, Biennial Report 1886-1887,
Baltimore, p. 201.
4. Baltimore Sewerage Commission, 1897, p. 55.
5. Carl Speer, Jr., "Sanitary Engineering Aspects of Shellfish
Pollution." Unpublished thesis, The Johns Hopksin Uni-
versity, Baltimore, 1936, p. 35.
6. Baltimore Sewerage Commission, 1897, p. 54.
7. Ibid., p. 55.
8. Ibid., p. 80.
9. James B. Crooks, op. cit., pp. 132-154.
10. "Mayor's Message to the City Council of Baltimore for the
Year 1897," Baltimore, 1898, p. 24.
11. Ibid., p. 25.
12. Baltimore Sun, Sept. 23, 1898.
13. Sewerage Commission of the City of Baltimore, 1899 Report.
14. Ibid., pp. 15-16.
15. Ibid., p. 17.
16. Chapter 349, Act of Maryland 1904 (April 7, 1904).
17. Sewerage Commission of Baltimore, Annual Report, 1906,
p. 17.
18. Sewerage Commission of the City of Baltimore, "Report of
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the Board of Advisory Engineers and of the Chief Engineer
on the Subject of Sewage Disposal," Baltimore, 1906, p. 17.
19. Ibid., p. 43.
20. Commissioners of Fisheries of Virginia "Annual Report,"
Fiscal Years 1910-1911, p. 11.
21. 0Ģ. cit. Fiscal Years 1913-1914, p. 14.
22. 0Ģ. cit. Fiscal Years 1915-1916, p. 12.
23. Commissioners of Fisheries of Virginia, 17th Report, Fiscal
Years 1914-1915, p. 12.
24. Commissioners of Fisheries of Virginia "Annual Report,"
Fiscal Years 1915-1916, p. 12.
25. See City of Hampton v. Watson, 89 Southeastern Reporter,
81-83 (Va. 1916).
26. Ibid., p. 82.
27. Ibid., p. 82.
28. Darling v. City of Newport News, 96 Southeastern Reporter,
307-315 (Va. 1918).
29. Ibid., p. 308.
30. Ibid., p. 309.
31. Darling v. City of Newport News, 249 U.S. Reports, 540-544
(1918).
32. Ibid., p. 542.
33. Ibid., p. 543.
34. Commissioners of Fisheries of Virginia, "Annual Report,"
Fiscal Years 1922-1923, p. 10.
35. Hugh S. Cumming, "Investigation of the Pollution of Tidal
Waters of Maryland and Virginia," Public Health Bulletin
No. 74, U.S. Public Health Service, 1916.
36. Hugh S. Cumming, et al., "Investigation of the Pollution
and Sanitary Conditions of the Potomac Basin," Public
Health Service Hygenic Laboratory, Bulletin No. 104,
Washington, D.C., 1916.
37. Carl Speer, Jr., oĢ cit., p. 24.
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38. Office of Environmental Programs, Maryland Department of
Health and Mental Hygiene, "Notes and Information Concer-
ning the Oyster Industry 1925-1928," (bound file), Letter
of October 29, 1925.
39. Department of Health of Maryland Annual Report, 1934, p. 7.
40. Chesapeake Bay Authority Conference Report, Oct. 6, 1933,
Baltimore, Md., 1933, p. 33.
41. Commissioners of Fisheries of Virginia "Annual Report,"
Fiscal Years 1928-1929, p. 11.
42. Commissioners of Fisheries of Virginia "Annual Report,"
Fiscal Year 1930, p. 6.
43. Commonwealth v. City of Newport News, Vol. 164, South-
eastern Reporter, p. 690 (Va. 1932).
44. Ibid., p. 692.
45. Ibid., pp. 689-700.
46. Ibid., p. 700.
47. "Pollution: Report of the Committee Appointed by the
Governor," Senate Document No. 6, Division of Purchase
and Printing, Richmond, Jan., 1934, p. 3.
48. Ibid., p. 8.
49. Ibid., p. 9.
50. Ibid., p. 17-32.
51. The purpose of the act was "... the relief of the dis-
trict from pollution and the consequent improvement of
conditions affecting the public health and the natural
oyster beds, rocks, and shoals."
52. Md. Commissioners of Fisheries 1902, 1903 "Annual Report,"
pp. 6-7.
53. Cumming, op. cit., p. 43.
54. Md. Acts of 1914, Chapter 810, "The State Board of Health
shall have general supervision and control over the waters
of the States, insofar as their sanitary and physical
condition affect the public health and comfort."
55. Md. Acts of 1917, Chapter 14, Section 2.
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56. Md. Conservation Department "Annual Report 1922," p. 24,
Appendix.
57. Ibid., p. 19.
58. Mark S. Watson, "The Fruits of Conservation," Baltimore
Sun, July 13, 1930.
59. Department of Health of Maryland "Annual Report, 1936,"
Baltimore, p. 182.
60. Maryland Conservation Department "Annual Report, 1936,"
pp. 14-15.
61. Baltimore Sun, Oct. 3, 1940.
62. Department of Health of Maryland "Annual Report, 1937,"
p. 195.
63. Ibid., p. 197.
64. Quoted in "Water Pollution: A Policy and Program for
Control," Maryland Water Pollution Control Commission,
Jan. 1949, p. 10.
65. Maryland Conservation Commission "Annual Report, 1940,"
p. 59.
66. See Water Pollution vertical file, Pratt Memorial Library,
Baltimore, Md.
67. Interview, Dr. Corneillius Kruse, Department of Public
Health, Johns Hopkins University, Oct. 16, 1980.
68. See articles in the Baltimore Sun, dated May 10, 1936,
August 28, 1938, and September 8, 1938.
69. See, e.g., Chapter 61, 1849-1850 Acts of the Assembly;
Chapter 147, 1852, Chapter 85, 1874; Chapter 270, 1884.
70. Ernest C. Levy, "Report to the Water Committee on the
Investigation of the Effect of Trades Wastes on the Water
of the James River at Richmond," Richmond, 1905, p. 21.
71. Maryland Conservation Commission "Annual Report, 1922,"
Appendix, p. 21.
72. Commissioners of Fisheries of Virginia Annual Report,
Fiscal Years 1918-1919, p. 10.
73. See discussions of oil pollution in Maryland Department of
Conservation "Annual Report, 1923," pp. 27-31, and 1924.
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74. Commissioners of Fisheries of Virginia "Annual Report,
Fiscal Year 1930," p. 6.
75. Commissioners of Fisheries of Virginia "Annual Report,
Fiscal Years 1938-1939," p. 30.
76. 0Ģ. cit., Fiscal Year 1940-1941, p. 12.
77. John B. Pleasants, "The Tidal James: A Review," Special
Report No. 18. Virginia Institute of Marine Science,
Gloucester Point, 1971, p. 108.
78. "Craney Island Spoil Disposal Area," briefing paper
prepared by the Norfolk District, U.S. Army Corps of
Engineers, June, 1970.
79. A. G. Huntsman, "Oceanographic Research on Chesapeake Bay,"
undated.
80. Ibid., p. 22.
81. Ibid., p. 14.
82. Ibid., p. 24.
83. Chesapeake Bay Authority "Conference Report," Oct. 6, 1933,
Baltimore, Md.
84. Cf., State Planning Commission, "Conservation Problems
in Maryland," Baltimore, 1935.
85. William K. Brooks, et al., "Report of the Oyster Commission
of 1884," Baltimore, 1884.
86. Chesapeake Bay Authority, 0Ģ. cit., p. 121.
87. News article, Baltimore Evening Sun, Jan. 14, 1939.
88. Commissioners of Fisheries of Virginia "Annual Report,
Fiscal Years 1938-1939," p.-9.
89. Ibid., p. 8.
90. See news article, Baltimore Sun, Sept. 16, 1941.
91. John Frye, The Men All Singing, Downing Press, Norfolk,
Virginia Beach, 1978.
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SECTION VI
1945-1960
When the war ended in 1945, Virginia had in place the
Hampton Roads Sanitary Commission. It immediately resumed its
work to sewer and treat municipal and industrial wastes in this
prime Virginia trouble spot on the Bay. By 1947 the Commission
had committed $12 million to the task, and improvements to
municipal system, actions by industries, and the correction of
some of the smaller sources of pollution in restricted waters
resulted in the reopening of oyster beds.l At the same time,
the Virginia Fisheries Laboratory resumed its study of the
biology of the Bay, and also turned its attention to exotic
pollutants such as DDT.2 There was clearly a sense of optimism.
The most important development of the period occurred far
from the Bay in the vicinity of Front Royal. A plastics plant
had been constructed on a branch of the Shenendoah River, and
its discharges, begun in 1940, had completely killed off the
aquatic life on a sizable stretch of the river. Fishermen and
conservation groups in the area were outraged, and they pro-
ceeded to seek political support for government action. An
influential state delegate from that area, A. Blackman Moore,
agreed to serve on a study committee to investigate what needed
to be done about water pollution in the state. His committee
came forward in 1945 with a recommendation that a state agency
be established with responsibility for the management of pollu-
tion control throughout the state (excluding the area under the
jurisdiction of the Hampton Roads Sanitary District). The bill
went before the 194 5 session of the General Assembly, and under
Moore's protection and influence, passed the House and Senate
with only a few dissenting votes: One of the features that
allowed for broad acceptance was a grandfather clause that
exempted industries and municipalities already in place. Any
expansion or modification, however, required regulatory approval
by the Water Control Board. The basic approach of the Board,
as with many other state agencies of the time, was to deal with
the condition of _the stream or receiving body of water, not
with the discharge itself. This, according to the prevailing
dilution theory of the time, allowed for the maximum beneficial
use of the water for waste disposal as well as for other uses.
The Board therefore had to establish that there was a harm to
other uses before taking direct remedial action.3
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The creation of the WCB, together with the progress of the
Hampton Roads Sanitary District, was greeted with enthusiasm by
the Marine Resources Commission. In its 1948-1949 report, it
said: "The problem of pollution is, we think, a vanishing one
. ... We can envision the time in the not too distant future
when pollution will no longer be a problem in Virginia, and
valuable oyster ground formerly condemned for use will be
restored to production."4
The next few years seemed to support that optimism. The
treatment plants put on line in the Hampton- Roads area allowed
for the opening of nearly 12,000 acres of oyster ground, a
success that was hailed as a national model.5 The Water Control
Board, using a similar approach in other parts of the state,
concentrated on the development of primary treatment plants for
municipal systems. Industries were encouraged or pressed to
adopt internal process changes to reduce their loadings to tide-
water and feeder streams.6
Through the fifties, however, the optimism of the Marine
Resources Commission eroded. Read in sequence, their biennial
comments on the pollution issue sound like a winding-down
record. In 1953, they state: "The problem of pollution con-
tinues to be a serious one. However, the State Water Control
Board is making progress in the abatement of pollution for
certain streams and the prevention thereof in others."7 By
1957, the statement was a bit stronger: "The problem of pollu-
tion continues to plague the seafood industry despite the fine
work of the State Water Control Board and the Hampton Roads
Sanitary District. The discharge of industrial waste . . .
poses a real problem."8 By 1959 it was "[p]ollution is a
continuing and rapidly growing serious problem which requires
prompt attention ..." "Rapid growth of population and
industry is outstripping the ability of the SWCB and HRSD to
deal with the problem."9 And, by 1961, the Commission lamented:
"Contamination of our natural waters by pollutants of various
types is one of the most pressing problems facing our Common-
wealth today. Pollution is directly affecting our marketing
and the consumption of oysters and clams. It is very possible
that it may be one of the reasons for our decline in produc-
tion."10 This time there was. no mention of the otherwise fine
effort of its sister agencies.
A number of factors contributed to this decline in confi-
dence. There was a marked growth in industrial activity in the
tidewater area, particularly in the Hopewell area of the James
River. Moreover, the research work of the Virginia Fisheries
Laboratory identified new concerns. The laboratory investigated
pollution sites and fish kills in the early 1950's, and reported
on the difficulty of establishing a direct link between dis-
charges, such as those from the major pulp mill wastes at
Yorktown, and deterioration in the resource. The lab pointed
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out the difficulty of doing research in marine environments,
when most of the national research upon which standards and
pollution control were based had been done on freshwater bodies
of water.11 In its 1956-57 report, it presented a laundry
list of things to worry about, while stressing that there was
too little knowledge upon which to base sound and enforceable
control requirements. It warned of the problems of subtle
effects on nursery grounds and spawning areas; of detergents
and industrial chemicals that passed through municipal treatment
systems unaffected; of toxic insecticides and weed killers that
could have major and persistent effects in small considerations;
and of new and poorly understood chemicals, the toxic effects of
which had not even been guessed at, let alone studied.I2 More
generally, it described the need to study and understand the
Bay as a system, in order to be able to assess the effects of
man's activities. "There must be more research on pollution,"
the laboratory urged, "... before the Tidewater area under-
goes an industrial explosion . . . "13
One specific problem that drew scientific attention was a
massive oyster dieoff in the Rappahanock River in 1955,
repeating an earlier dieoff in 1949. Once again the watermen
applied common sense and argued that it was caused by upstream
pollution. The scientific evidence, much of it gathered and
evaluated by the CB Institute, pointed to naturally occurring
low oxygen levels brought on by heavy rainfall. In describing
the low oxygen conditions found in various parts of the Bay, the
VF-L stated, "There is no evidence whatsoever that pollution
contributes significantly to any of these situations."!^ The
director of the CBI, in commenting on the results of its
studies, expressed sympathy with the watermen in finding it
difficult to accept that the problem was a naturally occurring
one, since they had seen other periods of heavy rains in which
such a dieoff had not occurred. However, the evidence still did
not point to any man-induced changes.15
In Maryland, support for a pollution control agency had
been developing ever since the late thirties, especially from
the conservation and sportsmen's groups. In January of 1945,
representatives of the Isaac Walton League and the League of
Maryland Sportsmen met wtih the governor and key legislators,
to discuss problems pertaining to pollution in free flowing
streams. The Health Department was brought into these dis-
cussions, but the conservation agencies, which had undergone
some reorganization in 1939 and 1941, were not.16 The Board of
Natural Resources formed its own study committee, and joined the
private groups in urging the Governor to form a study committee
to examine the state program and see what changes, if any,
were needed.
By late 1945, a Committee on Water Pollution was formed,
and a year later proposed the formation of a Commission similar
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to that existing in Michigan. The commission would be a coordi-
nating body which drew together the various functions and
interests of the Health Department and the fisheries interests
within the Board of Natural Resources.17
By the time of the 1947 legislative session, the proposal
had changed to that of a new agency, similar in some respects to
the Board already in place in Virginia. Sportsmen's groups in
particular had argued that a coordinating body would not be
sufficient. The need, they felt, was for an agency that would
have pollution control as its sole function. Against the objec-
tions of municipal and industrial interests, as well as from
government officials,18 the bill passed, and the Water Pollution
Control Commission was established.19
The work of the commission in the early years is well
documented in its annual reports, which reflect the philosophy
under which it operated. The commission was pragmatic and
modest, stressing the twin principles of cooperation and
reasonableness that had guided the work of the Health Depart-
ment and the Conservation Department in the 1920's and 1930's.
The annual reports and other documents assume that waters have
a natural assimilative capacity, and that it was only after that
capacity had been exceeded that interference with other uses
occurs. It was the duty of the Commission to see that such
excesses did not occur, and when they did, to take corrective
action. Throughout the process, economic reality had to be kept
in mind, and requirements had to be " . . . not only techni-
cally attainable but also financially feasible, so as not to
impose upon the State's industrial and municipal economy an
expense which is out of proportion to the benefits sought."20
The Commission stressed that its work was in the best interests
of the economy, pointed out that it was often to the advantage
of business to support pollution abatement programs. "An
active water pollution control program ... is a good
business policy for the State as a whole," it said.21 "No one
reading the technical journals of industry could fail to be
impressed by the sincerity of industrial management in its
efforts to solve the problem of stream pollution."22
During this period the regulators spoke well of the regula-
tions. With a cooperative spirit, the regulators set out with
a small staff to attack water quality problems. These problems
were seen to be wastes from canneries, wash from sand and
gravel operations, and oil discharges on the Bay. Work on the
first two concerned non-tidal streams, although most of the
operations were in the coastal plain and therefore had at least
an indirect effect on the Bay. The oil issue was attacked
primarily by enlisting the aid of Bay pilots, who were urged
to impress upon the ships' captains the importance of observing
the 1924 Federal Oil Control Act. Although prosecution under
the Act was difficult and the fines small, a real hardship could
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be placed on a ship by requiring her to remain in port while
an investigation was conducted. This tactic apparently helped
reduce the incidence of violations, as oil disappeared from the
list of primary pollution concern in the Bay.23
If progress was the official view expressed in the annual
reports of the Water Pollution Control Commission, the Health
Department, and the Board of Natural Resources, the newspaper
coverage of the time was to the contrary. Curtis Bay and Back
River continued to be sources of criticism and complaints. In
1948, over 1500 residents of Back River assembled to protest
water quality conditions there, and agitated for the City of
Baltimore to do something about the Back River Sewerage Treat-
ment Plant. The City was examining a variety of alternatives to
upgrade the plant when a circuit court judge ordered the city
in 1949 to consider direct discharge to the Bay as a viable al-
ternative; in so doing he seemed to vindicate the Sewerage
Commission of 1899, who had pressed unsuccessfully for this use
of the Bay.24 Industrial discharges continued to be complained
about in Curtis Bay, and in 1955 Anne Arundel County took the
unusual step of suing the DuPont Company to enjoin it from
building a discharge pipe in Chesapeake Bay, although such a
measure had the approval of WPCC."
In the mid-1950's, numerous communities in the Upper Bay
were still discharging raw sewage to the Bay, prompting the
formation of the Upper Chesapeake Watershed Association, a
citizen's group whose primary mission was to create pressure
for the construction of waste treatment plants. Also in 1955,
the first major Bay water pollution news article appeared in
the Baltimore Sun, itemizing the various problem areas, the
sources of pollution, and the lack of treatment implemented by
either municipalities or industry.26 The article suggested
that the WPCC was something less than aggressive in having
taken only four industries to court in the eight years of its
existence. Also during the same time (mid-1950.'s) , the
municipalities of the Bay area were complaining that the Health
Department was being unreasonable in its demands that they
install modern sewage treatment facilities. The towns simply
could not afford it, they claimed.27 These complaints, which
co-existed with those of citizens and conservation groups,
that not enough was being done, suggest that there was con-
siderable ambivalence about the State's programs that did not
get expressed in any dramatic political way.
Throughout the period, new water quality concerns were
added to the long-standing issues of municipal and industrial
discharges. Wastes from boats became an issue that received
mention in the late 1940's, particularly in the crowded and
poorly circulating subsidiaries of the upper Western shores,
such as the South, the Severn, and the Magothy in Anne Arundel
County, and the Back and Middle Rivers in Baltimore.28 Growing
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awareness of pollution as an issue was matched by rapidly
growing use of the Bay for recreation. Indeed, they formed
a tight causal cycle, as the very boaters and residential
shoreline owners who were expressing concern about pollution
were also seen as a source of the problem.
Another new issue was the use of the Bay for explosives
testing. Although not specifically a water quality issue, the
testing of explosives created a number of highly visible fish
kills, roiled water, and general nuisance that was complained
about by citizens and worried about by scientists and managers.
The official view was that the military activity was of local-
ized effect, and did not constitute a major threat to the Bay;
nonetheless, it was so extensive and so prominent that it came
to be seen in some circles as a major menance that significantly
interfered with the productivity and enjoyment of the Bay.29
Acid mine wastes was also a new concern of the 1950's.
Coal mining in the upper reaches of the Potomac and Susquehanna
had created hundreds of miles of highly acidic and biologically
dead streams, a condition that got much more attention after
the war with the growth in sport fishing and the increased
political activities of sportsmen's clubs. While the acidic
waters were, for the most part, buffered by the time they
reached the Bay, there was a popular suspicion that the evil-
looking "yellow boy" of mountain streams would eventually work
its way to the Bay.
In 1954, the U.S. Bureau of Mines developed a plan that
would have brought mine wastes directly to the Bay. In what is
probably the biggest of the "big pipe" proposals for waste
disposal in or to the Bay, the Bureau proposed that a 180 inch
pipe be built from the anthracite coal region of northeastern
Pennsylvania to the Bay, in order to drain the underground coal
mines that were rapidly filling with water.30 The water could
not have been pumped into nearby streams because of its high
acidity, but the Bureau argued that the Bay, with its enormous
quantity of water, would quickly neutralize the acids of the
mine drainage, and suffer no harmful effects.
Maryland officials responded with outrage. After assuring
watermen and sportsmen's groups that the State of Maryland would
not tolerate such an invasion from a neighboring state, the
Governor himself held meetings with the Congressional delegation
and with officials in the Interior Department to seek to get the
project withdrawn.31 The alacrity of the response was perhaps
unnecessary, as it appeared that the proposal had serious
technical and economic flaws. Pennsylvania officials were not
themselves enthusiastic about the project, so that by the end
of the year it had died. Nonetheless, it is a project of
considerable interest because it reflects another example of the
attractiveness of the Bay as a sink for wastes, and it
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represents one of the first clear examples of an interstate
water quality issue.
A second "big pipe" proposal marked this decade, this one
with a source closer to the Bay. Consulting engineers working
for the District of Columbia proposed that the municipal wastes
from that city, which contained a substantial loading from the
Maryland suburbs, be piped across southern Maryland and dis-
charged into the main stem of the Bay. This would remove
pressure from the highly restricted and slowly circulating
Potomac River estuary, and would provide a source of irrigation
water to Southern Maryland farmers, then experiencing a rather
severe drought. In addition, suggested the consultants, the
wastes would provide additional enrichment to the Bay, which
would be beneficial to the total productivity of the Bay and
not injure any of the Bay's resources.32
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Section VI Notes
1. Commissioners of Fisheries of Virginia, Annual Report,
Fiscal Years 1946-1947, p. 9.
2. Commissioners of Fisheries of Virginia, Annual Report,
Fiscal Years 1948-1949, p. 30.
3. This account of the origins of the State Water Control
Board was given in a private interview by A. H. Paessler,
long-time Executive Secretary to the Board. Richmond,
Virginia, December 1980.
4. Commissioners of Fisheries of Virginia, Annual Report,
Fiscal Years 1948-1949, p. 10.
5. Water Resources Policy Committee, "A Water Policy for the
American People," Vol. I, 1950. GPO, Washington, D.C.,
p. 187.
6. A. H. Paessler, ibid.
7. Commissioners of Fisheries of Virginia, Annual Report,
Fiscal Years 1952-1953, p. 10.
8. Ibid., Fiscal Years 1956-1957, p. 10.
9. Ibid., Fiscal Years 1958-1959, p. 11.
10. Ibid., Fiscal Years 1960-1961, p. 12.
11. Ibid., Fiscal Years 1956-1957, p. 49.
12. Ibid., Fiscal Years 1956-1957, pp. 49-51.
13. Ibid., Fiscal Years 1960-1961, p. 46.
14. Ibid., Fiscal Years 1958-1959, p. 32.
15. Ibid., Fiscal Years 1958-1959, pp. 51-52.
16. Maryland Board of Natural Resources, Annual Report,
1945, p. 76.
17. Ibid., 1947 Report, p. 143.
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18. See Baltimore Sun articles of November 27, 1945; March 16,
1946; and October 3, 1946, for discussions of the develop-
ment of the Act.
19. Annotated Code of Maryland, Article 66C, Sections 34-45,
1951 (Flack).
20. Maryland Water Pollution Control Commission, Annual Report,
1947, p. 9.
21. Maryland Water Pollution Control Commission, Biennial
Report, 1952-1953, p. 9.
22. Maryland Water Pollution Control Commission, Biennial
Report, 1950-1951, p. 25.
23. Dr. Joseph McLain (first chairman of the Water Pollution
Control Commission), private interview, September 1980,
Chestertown, Maryland.
24. Department of the Health of Maryland, Annual Report, 1949,
pp. 40-41.
25. Baltimore Sun, June 19, 1957.
26. Baltimore Sun, "Maryland Pollution," March 6, 1955.
27. See Baltimore Sun, March 12, 1955; and November 29, 1956.
2 8. Department of Health of Maryland, Annual Report, 1949,
Baltimore, p. 49.
29. See Maryland Board of Natural Resources, Annual Report,
1947, 1959, and 1961.
30. Baltimore Sun, March 1, 1954.
31. Washington Post, November 1, 1957.
32. Abel Wolman, John C. Geyer,and E. E. Pyatt, A Clean
Potomac River in the Washington Metropolitan Area, Inter-
state Commission on the Potomac River Basin, Washington,
D.C., 1957, pp. 49-50.
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SECTION VII
1960-1972
Clustered around 1960 are a number of events that presaged
fundamental changes in the kinds of issues that concerned Bay
governments. Virtually all of the previous concerns were
prompted by episodes where municipal and industrial wastes at
various locations attracted the attention of scientists, admin-
istrators, legislators, and the courts. After 1960 concerns
became larger. The concept of water quality became all inclu-
sive; governments more and more asked the question: "What is
the condition of Chesapeake Bay?" The Bay became generally
recognized as an ecological system, subject to a wide variety of
man-made influences transcending the boundaries of states, the
jurisdictions of agencies, and the capacities of science to
define and predict.
Some issues of the 1960's had been around for some time;
others were new. But all were marked by problems of increased
size, complexity, and persistence. Flow regulation or modifica-
tion of the major rivers (Susquehanna, Potomac, and James), as a
tool in water quality management, came under consideration. The
effects of waste heat discharges, particularly from power plants,
began to be seen as the major threat to the Bay. Spoil disposal
in the Maryland portion of the Bay developed into a full-blown
controversy. Over-enrichment of the Bay and heads of the major
sub-estuaries became a matter of concern. The effects of navi-
gation projects on salinity first on the James and then on the
old C & D Canal became a point of debate. And large scale
engineering projects raised the question of cumulative effects
of all of man's activity. Rapid development in the Washington
suburbs and its effect on sewage disposal and soil erosion,
introduced land use practices as'a source of concern.
Tying all of these issues together were a series of journa-
listic accounts of the Bay and its problems. These articles,
both news and feature, began in the early 1960's and reached a
peak of volume and urgency around the end of the study in the
early 1970*s. To the detailing of these issues we now turn.
In the early 1960's, the programs of the two state water
pollution control agencies continued substantially as before.
In Virginia, the general feeling was that significant progress
had been made on the municipal wastes front, that there was a
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reduction in oil pollution, and that it was now time to work
more directly with industries to reduce wastes through the con-
struction of waste treatment facilities. Previously, industries
had been urged to adopt internal process changes that would
reduce their discharges.1 In Maryland, programs continued to
stress the need for cooperation with industry in setting realis-
tic goals and providing economically feasible solutions. Toward
that end, the Maryland Commission began a series of annual
conferences to discuss waste control technologies.2
Nonetheless, there were signs that the rapid population
growth throughout the region was making the existing programs
inadequate. The Virginia Fisheries Commission, true to form,
continued to express concern for the effects of pollution, while
praising or at least encouraging the Water Control Board and
the Hampton Roads Sanitary Commission. "Contamination of our
natural waters by pollutants of various types is one of the most
pressing problems facing our Commonwealth today," it said in
1961.3 And through the decade, while varying its primary con-
cern from industrial to municipal pollution, it was consistent
in the opinion that the problem was grave. In 1971, it repeated
its 1961 refrain, "contamination of our natural waters by pri-
mary and secondary pollution is one of the major problems
confronting the seafood industry . . . our paramount concern at
the present is the problem of municipal sewage.Treatment
plants generally were not able to handle storm loads, and, as a
consequence, beds were frequently closed for some time following
rains. And in 1972:
We know that the Water Control Board is working
diligently to prevent contamination of our
waters, but this is a gigantic task .... The
Commission prays to the General Assembly to hear
the plea of an endangered industry and to act
with courage and decisiveness in providing the
impetus for swift corrective action in this area.5
In Maryland, the fisheries industry was optimistic. The
areas closed to shellfish were considerably smaller than in
Virginia, and the MSX disease that had greatly reduced oyster
stocks in Virginia, had had little effect in Maryland. The
1960's also marked a time of rapid increase in Maryland oyster
harvest, due to an aggressive state-sponsored reseeding program,
and several years of above-average natural reproduction. Thus,
Maryland was able to recapture first place in national oyster
production, a spot it had relinquished to Virginia in 1930.
Maryland was also successful in upgrading its municipal
waste treatment plants, so that by 1969 it claimed that approxi-
mately 80% of the Bay area sewage received secondary treatment.7
And on the industrial front, there was a consistent sense of
progress in the reports of the WPCC (renamed and reorganized as
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the Department of Water Resources in 1964), where the number of
orders for compliance, investigations, court actions, and other
measures of activity continued to increase.8 These official
reports are less than convincing, however, since they give only
a numerical report on activity, and do not reflect the volumes
of wastes or the actual conditions of the receiving waters.
1964 brought a significant change in the federal role in
water quality control, with the passage of the FWPC Act of 1964.
This act required that the states establish water quality stan-
dards for all interstate waters within their borders, in order
to qualify for federal assistance in waste treatment financing,
and to avoid direct federal enforcement intervention. Both
Maryland and Virginia developed programs of compliance and, in
the process, underwent rapid growth in their water control
staffs and budgets. The direct impact of this administrative
and regulatory change on the Bay is difficult to discern, but it
is noteworthy that the shift to water quality standards did not
produce a record by which net progress could be measured (des-
pite the emphasis on the quality of the receiving water rather
than on control of discharges). The only available benchmark
for achievement of conventional water quality objectives (i.e.,
control of discharges from industries and municipal sewer sys-
tems) , appears to be in the summary comments of the numerous
journalistic discussions of Bay water quality during this
period, which will be discussed below.
In the early 1960's, two Corps of Engineers' proposals for
major public works projects on the James River introduced
salinity modification as a "water quality" issue and prompted
scientific study and political controversy. The first was a
river basin program for the entire river, issued in 1962.^ The
multi-purpose program, consisting primarily of a system of dams,
would have allowed for the partial control of freshwater flows
into the estuary, thus affecting salinity. The second project
proposed the deepening of the shipping channel to Richmond from
25 to 35 feet.10 Because salinity distribution in the Bay and
its tributaries is affected by the size and depth of the
channels, this project also suggested that a change in salinity
would occur.
Salinity had long been a matter of concern to Virginia
oystermen. At the low end of the range of the oyster, an
unusual rise in freshwater inflow will depress salinity and
result in stress or death to oysters. This was often experi-
enced on the Potomac, and to a lesser extent on the other major
Virginia rivers. Generally of more concern, however, were the
higher salinities, because numerous pests of oysters were more
prevalent in the higher salinities. Other things being equal,
it was desirable to keep maximum salinities low, especially in
the vital seed-producing portion of the James.. The invasion
of MSX in the late 1950's, which had hit the Virginia oyster
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industry so hard, underscored this relation. MSX was generally
limited to higher salinity waters.H
In considering these two Corps projects, then, Virginia
officials and watermen attempted to assess the impact of the
proposals on the viability of the oyster industry. This con-
cern, of course, was nothing new. What was novel was the fact
that they were now dealing with a fundamental parameter of the
natural system, salinity, rather than with a relatively small
quantity of a constituent added by man. The concern had en-
larged from pollution to basic ecology. Obviously, significant
changes in the salinity of the James could have substantial
effects on the entire biological system supported by the estuary.
The question was, what were desirable and what were undesirable
changes.
The evaluation of the proposed river basin plan led to a
generally favorable response from the tidewater interests. The
basic result of the program would have been to even out the flow
of the river over the course of the year. This would prevent
summer salinities from going too high in the lower estuary, thus
holding the high-salinity predators at bay. It would also re-
duce the heavy slugs of flood waters, which tended to limit
oyster production in the upper part of the estuary. Two related
water quality benefits were expected. Increased summer flows
would provide more dilution waters for the wastes entering the
river at Richmond. This would tend to lessen the degree of
pollution downstream in the freshwater portion of the estuary.
Second, the reduction in floodwaters would also reduce the
oxygen-depleting effects of storms, which had been held accoun-
table for heavy oyster mortalities in the Rappahanock River in
the previous decade.
The proposed shipping channel was quite another matter.
Largely through the careful work of the Chesapeake Bay Institute,
it was understood that the James River, as well as the Bay and
the other major tributaries, had a two-layered circulation
pattern, with a net upstream flow of dense high-salinity water
in the lower part of the water column, and a net seaward flow
of fresher less dense water above. Deepening and widening the
channel, it was reasoned, might increase the total volume of
seawater movement upstream, resulting in higher salinities, and
also physically aid the upstream movement of oyster predators.
The fisheries interests, faced with a further threat to their
depleted industry, vigorously opposed the project.12
After the couple of years of jockeying between the fish-
eries and port interests, a positive approach to resolving the
conflict was adopted. The Virginia General Assembly appropri-
ated $400,000 in 19 64 for the construction of a hydraulic model
of the lower James estuary. The model was to test the effects
of the construction of the navigation channel on salinity
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distributions. The model was quickly constructed at the Corps
of Engineers waterways experiment station in Vicksburg,
Mississippi. Using Corps experience in calibrating and testing
such a model, together with inputs from the Bay scientific
community, it was determined that the channel would have
virtuallly no effect on the prevailing salinity regimen of the
estuary. On the basis of that finding, the Governor was
authorized by the General Assembly to give consent to the
project.13
What had been a major standoff between competing interests
was resolved using the best technology available to make an
informed judgment as to the effects of the project. It stands
as a landmark of rationality and objectivity in Bay resource
management decision-making. Regrettably, from the standpoint of
completeness, the navigation project was never begun. During
the time that the project was in doubt, an oil pipeline was
built between Hampton and Richmond. Since oil was one of the
commodities that gave the project its economic viability, the
provision of an alternative transportation mode changed the
picture. Upon reevaluation the Corps found the project to be
only marginally in the black (with a benefit/cost ratio of
barely over one) and so the project was withdrawn. It should be
noted that there were other environmental problems associated
with the project, which would have become more prominent had it
been pursued. Chief among them was the problem of spoil dis-
posal, which had long vexed Maryland officials. Since that
problem came to a head in Maryland at about the same time that
the James River controversy was underway, we will now turn to it.
Navigation channels and facilities in and around Baltimore
Harbor had required frequent dredging since the early part of
the nineteenth century. The Patapsco River, unlike Hampton
Roads, was not a natural deepwater port, and the Patapsco, al-
though not a large river, received the erosion from a 400 square
mile watershed, most of it hilly and highly erodable, and thus
contributed much more silt to the harbor than did the small and
slow flowing rivers of the Hampton Roads area.
In the nineteenth century, most of the material dredged
from the channels was simply transported to a nearby area and
dumped overboard. From the beginning, this practice bothered
oystermen, who claimed that it smothered their beds. On the
other hand, port authorities complained that oystermen damaged
the channels by dredging for oysters along their edges. Such,
apparently, was the nineteenth century standoff on the issue.14
With the expansion of the port and approach channels in the
1950's, the Corps of Engineers began to dispose of spoil in the
Kent Island Deep, an area of deep water that lay to the east of
the main channel near the Bay Bridge. This practice was
strongly objected to by Kent Island residents and watermen, and
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it gradually became a matter of increasing concern to fisheries
biologists and managers.
In 1959, after years of receiving complaints on the issue,
Governor Tawes appointed a committee to study the matter. Al-
though the primary concern was the biological effects of spoil
disposal, there were arguments from Kent Island property owners
that the filling of the Kent Island deep was changing the cur-
rents along the shoreline and greatly increasing the rate of
shore erosion. They also claimed that the water along the shore-
line was made more turbid by the dumping. Both of these claims
were considered farfetched by scientists, but they added to the
political pressure to do something about the activity.
The Committee reported in 1961, recommending the formation
of a permanent commission to review all disposal questions and
other issues involving the use of state submerged lands. It
also recommended that the state adopt a policy of land disposal
of spoil where possible. "The deep waters of the Bay remain an
important ecological environment which should remain free from
encroachment whenever possible."16 The Governor promptly formed
a Submerged Lands Commission, made up of various state natural
resources and economic development interests, and chaired by the
State Comptroller.
In the mid-1960's, the spoil disposal issues raised by the
expansion of the Chesapeake and Delaware Canal took center stage
away from the Kent Island Deep issue. The Canal, which was
being widened from 250 to 450 feet, and deepened from 27 to 35
feet, produced an enormous quantity of dredged spoil. Much of
that taken from the canal proper was disposed on land, but the
dredging in the approach channels was pumped to nearby shallow
areas and to the Pooles Island Deep. The concern of the Mary-
land fisheries officials was that this would damage the spawning
and nursery areas for a number of important finfish, principally
the striped bass, and might also put further stress on the
salinity-limited oyster beds in the upper Bay, which had been
on the decline since 1881.
Significant attention was given to this issue by both the
Submerged Lands Commission and the Board of Natural Resources.
For a time it was proposed that all dredged spoil be placed on
marshlands on Aberdeen Proving ground. By the mid-1960's, the
competing state interests had reached a compromise that would
allow for some disposal on land and some in Poole's Island Deep.
The Corps of Engineers, however, would not accept the additional
costs involved in such a practice, so eventually the state
resources agencies had to back down before the pressure from the
port development interests, and the overboard disposal continued
for both the C & D and the Baltimore Harbor projects.17
In the meantime, a number of studies were conducted that
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tended to diminish concern that the dredging and spoil disposal
was having a pronounced adverse effect. The primary result of
these studies, aside from advancing knowledge of the biology of
the upper Bay, was to provide guidelines for the timing of
dredging and spoil disposal, so not to interfere with spring
spawning of striped bass. These guidelines were adopted and the
spoil issue appeared for a time to be a problem solved by debate
and compromise, and by the application of applied scientific
research.
In 1968, however, an additional element entered the spoil
disposal picture. Research had been going on for about a decade
on the uptake of heavy metals by shellfish. For a shorter time,
detailed studies were being made of the water quality and sedi-
ments of Baltimore Harbor. In 1968, the Submerged Lands Com-
mission was officially informed of the problems posed by the
high concentrations of heavy metals found there.18 to dispose
of these sediments in the open Bay would raise the possibility
that shellfish would concentrate these metals to the point that
they would pose a threat to human health. At that time, there
was substantial uncertainty as to the actual risk involved.
Little was known about the actual physical, chemical, and
biological routes by which heavy metals might find their way
into shellfish. Furthermore, there was little agreement as to
the levels of metals that should be tolerated from a human
health standpoint.
Despite these uncertainties, the need for action was
politically clear. Here was once again a threat to the oyster
industry, if not in the direct form of a biological menace, at
least in the form of a public relations problem that might
affect the marketing of oysters, whether contaminated or not.
The state moved quickly to develop a solution. Following a
consultant's study, the Submerged Lands Commission proposed the
construction of a contained spoil disposal area to receive
contaminated spoil from Baltimore Harbor. A number of possible
sites were considered; the one found most economical and
feasible called for the construction of a gigantic man-made
island in the vicinity of Hart-Miller Islands just to the north-
east of the harbor entrance. (This is the same island pair over
which the Baltimore Sewerage Commission proposed to build the
Baltimore sewer outfall in the 1890's.) The original plan
called for the island to be approximately two miles long, half
a mile wide, and 25 feet above mean water, with a total capacity
of 125,000,000 cubic yards. The plan received the approval of
the state resource agencies, the Port Authority, and the Corps
of Engineers, all of whom were represented on the Submerged
Lands Commission, and the proposal was formally adopted by the
Governor and submitted to the General Assembly in February of
1969. "Confined disposal of certain types of dredging spoil is
essential to the preservation of the environmental integrity
of Chesapeake Bay. Provision of the contained disposal area
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will assure the continued orderly development of water-oriented
industry of the State without jeopardizing water quality for at
least the next twenty years."19 The General Assembly quickly
approved a bond issue for $13 million to construct the disposal
area, and the detailed engineering studies for the project were
begun.20
With a solution to the contaminated spoil disposal problem
in the offing, Maryland resources agencies argued for the sus-
pension of harbor dredging until the Hart-Miller project was
completed. Commenting on a Corps of Engineers project in the
fall of 1970, the Deputy Secretary of the Department of Natural
Resources recommended disapproval, "Since the confined disposal
area for the Upper Bay should be in operation by the time this
dredging project is to be initiated [in the winter of 1971-72]."
The director of the Fish and Wildlife Administration likewise
recommended disapproval of a Maryland Port Authority project in
Dundalk in 1971, citing the risk that overboard disposal in the
upper Bay would pose to a "developing commercial product, the
freshwater clam Rangia cuneata." Federal fish and wildlife and
water-quality officials also became involved in the process,
since all dredging projects needed a certification that they
would not contravene existing water quality standards or federal
guidelines. What resulted was a series of negotiated compro-
mises that allowed limited dredging while the details of the
Hart-Miller proposal were developed, and while the biological
questions relating to contaminated spoil were further studied.21
The more significant controversy was not between resource
and port development officials, or between state and federal
levels of authority. The Hart-Miller project, which had been
so carefully worked out between competing interests at the state
level, and which was seen by the state resource officials as a
major environmental victory for protecting the quality of the
Bay, was effectively stalled by determined local opposition.
Residents of the two peninsulas of land to the west of Hart-
Miller Island found the prospect of a large new landmass objec-
tionable. The reasons for the opposition range from objections
to destruction of the small natural islands to the claims that
the man-made island would change the circulation patterns of
Back and Middle Rivers, and do irreparable damage to the ecology
and recreational values of the entire area. Residents objected
to the change to the landscape, to the possibility that the dis-
posal area would smell, that it would pollute groundwater, and
that birds using it would sicken and die from exposure to the
contaminated wastes. They claimed initially that the island
would eventually be used as an industrial park, which would fur-
ther degrade the area, a claim that prompted the state to give
assurances that the island would eventually become a state
park.22 At the state wetlands hearing in the spring of 1971,
several hundred residents turned out to express their opposition
to the project, often jeering the numerous state offficials that
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testified on behalf of the project. With the state giving quick
approval to the project, the opponents turned their attention
to the federal approval process, where it was effectively
stalled. Joined by boaters and fishermen who use the existing
islands and nearby waters for recreation, they launched a cam-
paign of opposition that stalled the proposal some ten years
after the project was to have been constructed.23 The various
legal and political maneuvers used in blocking the project are
complex and, for the most part, fall outside the time boundaries
of this report.
The Hart-Miller controversy is of special interest in this
narrative because it represents perhaps the most significant
water quality issue in the history of the Bay (at least up to
197 2), when viewed from the standpoint of its economic impact.
Yet, its basis, stemming from concerns for the marketability of
Bay oysters, was largely a matter of conjecture. There was, in
1965 or 1970, no evidence that there was an actual health risk.
There was certainly no modern equivalent of the Wesleyan inci-
dent, that prompted the blocking the earlier Hart-Miller project.
Nonetheless, the enlargement of the Baltimore Harbor facilities
has been effectively stymied over this issue. There is now even
a body of scientific opinion that suggests that it would be
safer to use deep-water overboard disposal of contaminated
spoil, rather than a contained area, since the material would
be returned to the environment in which it had been stable for
some time, in which there would be little biological activity,
and in which it would not be exposed to oxygen and the leaching
effect of rainfall, as it would be in a contained area.
If spoil disposal in the upper Bay has been the issue in-
volving the longest conflict between competing Bay uses, the use
of the Bay for power plant cooling water was perhaps the issue
that developed the most intense controversy. Starting with a
coal-fired power plant at Chalk Point on the Patuxent River,
then another conventional plant at Morgantown on the Potomac,
and a nuclear plant on the James River in Virginia, the issue
culminated with the Calvert Cliffs nuclear power plant on the
main stem of the Bay in Maryland. The issue neatly spans the
period under consideration, beginning in 1960 and peaking, if
not ending, in late 1971.
Maryland officials had first become concerned about the
question of the biological effects of cooling water discharges
while reviewing the proposed power plant on the free-flowing
portion of the Potomac at Dickerson. There was an emerging body
of literature which recognized that elevated temperatures could
alter river biota. When the Chalk Point plant proposal was
received in early 1961, a new set of questions were raised
because of the estuarine character of the river. The Water
Pollution Control Commission therefore established a research
program to be conducted by the Natural Resources Institute, a
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research and teaching arm of the University of Maryland created
that year out of the Department of Research and Education, which
was abolished. The major component of NRI was the Chesapeake
Biological Laboratory at Solomons.
Basically the concerns of the Maryland officials were three-
fold. First was the effects of the exposure to high heat on
organisms taken into the power plant condensers. Second was the
effect of the chlorination that was necessary to keep the con-
densers free of algae and other fouling organisms. Third, and
most important, was the effect of the heated water discharge on
the ecology of the estuary in that area. Since the plant in-
volved a substantial temperature rise, and used a relatively
large portion of the available water for cooling, it was at
least possible that the plant would have a major and possibly
adverse effect on aquatic life.
The research progressed over a number of years, first in-
volving the collection of background information, then making
comparative studies once the plant went into operation. As the
results were completed, a generally unfavorable picture began to
emerge. The NRI scientists implicated the plant in a number of
adverse conditions they observed, most notably a large crab
dieoff in 1964, a dieoff of finfish the same year, and an in-
creased incidence of "green" oysters in the vicinity of the
plant which they attributed to copper coming from the plant's
condenser tubes. 4
The conclusions of NRI were generally challenged by offi-
cials in the Department of Chesapeake Bay Affairs, who felt the
issue of green oysters was exaggerated and threatened to raise
a new issue of concern in the minds of the consuming public.
Scientists hired by the power company put forward reports that
argued that the plant had had little adverse effect. The De-
partment of Water Resources generally accepted the research of
the power company, and even later suggested that the objectivity
of the NRI grcpup and its work was subject to question. 25 And
scientists at the Chesapeake Bay Institute, who were also con-
ducting research on power plant discharges, generally felt that
the effects of Chalk Point plant were minor and, for the most
part, temporary. VIMS scientists, on the other hand, were
generally disposed to take the same view as the NRI scientists,
that the power plants posed substantial risks to the Bay en-
vironment.
This variance of professional and scientific opinion might
have been of little long-term account, had it been restricted to
Chalk Point. In fact, however, the results of NRI*s work there
was being released and discussed in the press during the same
period in which Maryland was also evaluating a power plant pro-
posal at Morgantown, when a nuclear power plant was under con-
struction on the James, and when Baltimore Gas and Electric
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Company announced its intention to build a nuclear power plant
on the Bay at Calvert Cliffs. In a very short span of time,
thermal "pollution" became a major new issue, and the basic
disagreements over Chalk Point became very much expanded at
Morgantown and Calvert Cliffs.
The exact sequence of events relating to the three power
plants is now virtually impossible to sort out, particularly
since much of the early consideration of the thermal issue went
unrecorded. However, the principal initiator of the public
controversy was the announcement by Baltimore Gas and Electric
in May of 1967 that it intended to build a massive nuclear power
plant on Chesapeake Bay. Many different interests opposed this
proposal. First there was a concern for the cliffs themselves,
since the proposed plant was at the site of extraordinary fossil
deposits from the Miocene period. Second were the concerns of
property owners in the vicinity of the plants, particularly
those whose properties would be traversed by the transmission
lines carrying the electricity to the Baltimore area. Third
were those who were opposed to nuclear power, because of concern
for the risks of radiation, nuclear waste disposal, or accident.
And, finally, there were those who concentrated on the possible
effects of the waste heat discharged to the Bay.
Although all these concerns received considerable attention,
and perhaps the land use issue generated the most active opposi-
tion, it was the thermal question that received the most atten-
tion from officials and the press.* By early 1969, enough public
concern had been generated to result in six bills being intro-
duced in the General Assembly regarding power plants on Chesa-
peake Bay, including one that would impose a five year mora-
torium until a study could be conducted on the effects of waste
heat discharges.26 None of the bills passed, but opposition to
Calvert Cliffs continued to grow.
In the meantime, the Department of Water Resources had
granted a permit for the operation of Morgantown, an issue that
had been under study for over two years. Primarily because of
the controversy over Calvert Cliffs, and fed by the reports of
NRI from its Chalk Point studies, the Morgantown action also
drew heavy fire, some of it from the Virginia side of the river.
Prompted by these objections, the direction of the CBI,
Dr. Donald Pritchard, issued a statement in which he appraised
the likely effects of Morgantown on the Potomac. His reasons
for doing so were explicit:
The considerable newspaper coverage of statements
concerning possible excessive damage to the Chesa-
peak Bay and its tributary estuaries from thermal
effects of electric power plants now under construc-
tion or planned, and the expression of concern over
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the members of the State legislature, has led to the
general public impression that the Chesapeake Bay
and its tributary estuaries are in imminent danger
of catastrophic damage to commercial fisheries,
sport fisheries, recreation and other uses. It is
my first opinion that such is not the case . . .
In my opinion, the public as well as their elected
representatives have been misled as to the scope
of the problem, and the degree to which existing
knowledge can be utilized in appraising the problem
... A number of scientists and psuedo-scientists
in this state have been quoted, and misquoted, as
predicting severe damage from thermal pollution.
Those of us who have contrary views have so far
remained publicly silent. I find it necessary to
break this silence.27
He then went on to appraise the Morgantown project in the light
of the NRI findings on Chalk Point, and in the process levied
a direct criticism on the findings of its research and the con-
clusions drawn from them. In a cover letter to a state senator,
he summarized his opinion on the NRI work:
I am of the firm opinion that nowhere in the
report published by the Natural Resources
Institute ... is there a demonstration that
man's use of and harvest from the waters of the
Patuxent estuary adjacent to the Chalk Point
Power Plant has been adversely effected [sic]
by excess temperatures resulting from operations
of that plant.
He ended his report with the unequivocal statement: "I must
conclude that the operation of the Morgantown Power Plant, under
conditions prescribed by the Department of Water Resources, will
have no measurably effected [sic]."28
Dr. Pritchard's statement was quickly followed by one from
the Director of the Natural Resources Institute, Dr. L. Eugene
Cronin. In it, Dr. Cronin made a point-by-point response to the
issues raised by the Chalk Point study. Then he summarized his
major concerns to which "the biologists of the VIMS and members
of the Potomac River Fisheries Commission concur." "a. Allow
no elevation above 90 degrees F.; b. Prohibit the use of "tem-
pering water" [a practice of drawing additional river water into
the discharge canal so that the final temperature would not
exceed the prescribed maximum]; and, c. The biological studies
by company-hired consultants are poorly designed, contain seri-
ous errors, and are completely inadequate as a baseline of
present conditions or for predictions of future effects."29
(emphasis supplied in original) That Dr. Cronin saw fit to
underline the last point makes it clear that this was a major
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source of concern and disagreement.
He then went on to characterize his difference with Dr.
Pritchard: "You and I differ principally in philosophy, and
this should not be misconstrued. You are inclined to encourage
full use of the Bay unless available knowledge proves that human
uses will be impaired. I am more conservative and prefer not
to risk damage to the Bay until reasonably good estimates can be
made of all effects."30 He concluded by quoting Dr. Pritchard's
final statement to the effect that there would be no adverse
effect from Morgantown (quoted above), and commenting on it thus:
"With the best will in the world, I must say that the fragmentary
information available is totally insufficient as a basis for such
an absolute statement, which does not sound like your usual
precise and well-qualified thinking .... Perhaps it is easier
for physical oceanographers to make such flat predictions than
for biologists. I would never make them, and feel that it is of
the utmost importance that we all avoid sweeping conclusions."31
These two statements, issued by the two leading Maryland
scientific policy advisors, provide a striking outline of the
type of problem faced by Bay officials since about 1960. Dr.
Pritchard laid particular stress on the public relations aspects
of the controversy, thereby giving credence to one of the major
theses of this study, that public opinion defines a water
quality problem more than the condition of the water itself.
Dr. Cronin stated a basic difference in point of view
("philosophy" in his words) that would lead to very different
government policies and actions, depending on which was adopted.
And behind the debate was the question of the reliability and
objectivity of the scientific findings developed by various
laboratories and individual researchers.
Faced with these unresolved (and perhaps unresolvable)
questions, Governor Mandel, at the request of the General As-
sembly, appointed a commission to study the matter. Under the
chairmanship of Dr. William W. Eaton, the committee examined
the record both as to the thermal and nuclear issues. In late
December, it issued its report, saying in effect that the Cal-
vert Cliffs plant, if built under the standards imposed by the
Department of Water Resources and the Department of Health and
Mental Hygiene, would not pose a threat to the Bay.32
The commission was clearly impressed by the economic argu-
ment that the Bay represented a valuable resource as a cooling
medium. It pointed out that the entire Maryland portion of the
Bay would only be elevated in temperature by 1.5 degrees F. by
30 power plants the size of Calvert Cliffs (assuming even dis-
tribution of the waste heat), and it concluded therefrom:
"Research to find what fraction of the potential several hundred
of millions of dollars cost of artificial cooling systems can be
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avoided through Bay use hardly needs economic justification."
In March of 1970, Dr. Cronin and the principal investigator at
Chalk Point, Dr. Mihursky, issued a press release in which they
itemized a number of unanswered questions regarding the effects
of the plant, and suggesting that a strong research program be
adopted to address those questions. If the plant is approved,
they said, and is proven to have adverse effects, penalties
should be imposed and immediate corrective action taken.34
The document also included additional statements by Drs.
Cronin and Pritchard. The former stated his basic precept: "It
is of the utmost importance that the effects of large environ-
mental changes be estimated with reasonable accuracy prior to
decision and commitment on those changes."^5 The latter com-
mented: "It is an unfortunate fact that much of the research on
the effects of thermal discharges into natural bodies have [sic]
been biased, even though possibly unconsciously, towards either
showing that no damage occurs, or is intended to prove the
conservationist's opinion that catastrophic damage will result
from such discharges. While it will be difficult to assure that
all research personnel are free from some bias in this matter,
particularly in view of recent events here in Maryland, steps
could be taken to assure an unbiased review and research
guidance procedure."36
In May 1970, the Department of Water Resources issued its
final permit to the Baltimore Gas and Electric Company, which
allowed the appropriation of roughly 3.5 billion gallons of
water per day for passage through the plant as cooling water.
This permit disposed of the principal water quality hurdle at
the state level, and was followed in 1971 by a Certificate of
Public Convenience issued by the Maryland Public Service Com-
mission, a writeoff by the U. S. Environmental Protection Agency
to the Atomic Energy Commission, a Maryland Wetlands Permit, and
eventual approval by the Atomic Energy Commission itself. (It
should not be thought that approvals were straightforward and
without difficulty. There were numerous legal and administra-
tive issues involved in this project that would take a book-
length manuscript to detail, including the landmark decision by
the U. S. District Court of Appeals in July 1971, that found the
AEC totally inadequate in its fulfillment of the requirements of
the National Environmental Policy Act. The details surrounding
the various permits issued by Maryland alone occupy several file
drawers.) The Calvert Cliffs plant began operation in 1974, and
in 1976 produced more electricity than any other nuclear power
plant in the free world.37 in 1980, the company claimed that
$400 million had been saved as compared to generating the same
amount of electricity using oil as fuel.38
While this major conflict was erupting in Maryland, Virginia
went about the business of approving a nuclear power plant on
the James River at Hog Island with little fanfare and no visible
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controversy. In the words of the Director of the Water Pollu-
tion Control Board, it "went through as slick as a whistle."39
The absence of controversy itself presents a problem in analysis,
because there is much less in the written record from which to
judge why things were so different south of the Potomac. The
Virginia Fisheries Commission did comment in a general way that
thermal pollution was an additional threat to the Bay, but there
was no overt attention to the Surry Plant. One fact that no
doubt contributed to the smoother approval process was that the
hydraulic model for the James was available to test the physical
effects of waste heat discharge. Working under contract with
VEPCO, scientists from CBI were apparently able to satisfy
Virginia scientists and government officials that these thermal
effects would not have adverse biological consequences. That
the whole process in Virginia occurred several years before the
Morgantown and Calvert Cliffs issues in Maryland probably made
for a smoother approval. There was no in-state research that
alleged adverse effects of other power plants, and the Chalk
Point work in Maryland was just emerging as the Surry Plant was
going through its final approvals in 1967. The state permit
process was significantly less cumbersome in Virginia, so that
decisions were more focused both in place and time. Perhaps
most significantly, there was no concentrated neighborhood or
conservation group opposition, as in Maryland, and little com-
ment on the project by the press. By the time the Bay-wide
press began to treat wastes as a major issue (see below), the
Surry Plant had already been approved and was well along to
completion. Thus, the issue that perhaps steamed the tempers of
more persons in Maryland, if not the waters of the Bay, caused
narry a mild fever in Virginia.
During the 1960's, the interstate management of the Potomac
and Susquehanna Rivers came under consideration. The states of
New York, Pennsylvania, and Maryland joined together to form a
Susquehanna River Basin Advisory Commission. Their task was to
develop a compact mechanism to address the management of inter-
state issues.
Because very little of the river is in Maryland, Maryland
officials were chiefly interested in addressing the relation of
the river to the Chesapeake Bay. The tremendous freshwater in-
flow of the river was recognized as the controlling influence on
the salinity and long-term circulation of the upper Bay. More-
over, the Bay receives the wastes carried by the Susquehanna to
its mouth. Maryland sought to use the proposed compact to
address its interests in both the quantity and quality of
Susquehanna River flows.
In the mid-1960's, various Maryland resources agency offi-
cials participated in discussions considering regulation of
flows in the Susquehanna. As in Virginia on the James, there
was general support for a regimen that would reduce flooding and
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increase minimum flows. Such an approach would tend to increase
the range of the oyster while reducing the range of its princi-
pal enemies. In addition, reduction in spring floods would
reduce the bacterial contamination that every year required the
closing of the upper Bay to shellfish harvesting in the Spring
months.
Much of the interest in the Susquehanna in the early 1970's
arose from the severe drought experienced by the Eastern United
States from about 1961 to 19 66. The Susquehanna, as the largest
Eastern river discharging to the Atlantic, was looked upon as a
potential water supply source not only within the basin, but in
the adjacent Delaware and Potomac basins as well. During the
same period, greatly increased use of river water for irrigation
was being developed, and power plants were being planned that
would require substantial amounts of water for cooling.
By the end of the decade, these issues were being eclipsed
by concern over the diversion of fresh water from the upper
Chesapeake to the Delaware Bay via the Chesapeake and Delaware
Canal. The issue began to take form in January 1968, when Dr.
Pritchard, while working on a Delaware estuary problem, dis-
covered a Corps of Engineers study done in 1934 that estimated
that there was a net outflow from the Chesapeake to the Delaware
Bay of slightly less than 1,000 cubic feet per second. Since
the Canal was being enlarged from 250 X 27 feet to 450 X 35 feet,
Dr. Pritchard reasoned that the net outflow would substantially
increase. He saw this as a factor perhaps more significant to
the physical and biological properties of the Bay than the other
diversions of Susquehanna flow then under consideration. He
made this possibility known to Maryland officials and other
scientists, and began his own calculations on the probable
effect of the canal enlargement.40
The issue was quickly picked up by government staff workers,
citizens conservation groups, watermen, and the press. By early
1969, the C & D Canal had joined the list of major Bay problems,
along with Calvert Cliffs, wetlands destruction, and spoil dis-
posal, in addition to the usual concern for municipal and indus-
trial discharges. Expressions of concern ranged from the care-
fully couched statements of Dr. Cronin, who said basically that
the effects could not be predicted, but might well be signifi-
cant, to the plaint of a waterman who suggested that the Canal
be made big enough so that instead of having a dead bay (Dela-
ware) connected to a half-dead one (Chesapeake), we could have
just one big dead bay.41
In 1970, at the urging of members of the Maryland Congres-
sional delegation, the Committee on Public Works of the House of
Representatives held hearings on the matter. Ostensibly, the
Committee was to consider whether the project, which had been
authorized in 1954 and which had already been largely completed
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at a cost of $65 million, should be continued.42
Testimony was varied. The Committee was considerably dis-
turbed by the recommendation of a senior Department of Interior
official that the project be stopped until exhaustic oceanogra-
phic and biological studies could be performed. Members ex-
pressed their dismay that a Federal agency would come forward at
such a late date and make a case against a project that had been
available to public and official scrutiny for so long. The In-
terior official responded that new information justified taking
a fresh look at a large-scale project of this kind, and that the
value of the Chesapeake Bay was so great that a cautious approach
was called for.43
The key testimony came from Drs. Pritchard and Cronin, who
issued statements arguing that the probable effects of comple-
tion of the project would be small, but that studies should be
connected that would provide adequate physical and biological
understanding of the Bay so that the long-term effects of the
enlargement could be assessed. They suggested that such studies
would indicate if there was a need for corrective measures (such
as locks), if adverse biological effects could be attributed to
the Canal.44
Following a recess of several weeks, the hearing reconvened
with testimony from the Corps of Engineers and Drs. Pritchard
and Cronin, outlining a research program to address the issues
raised previously. The Committee responded favorably to the
testimony, with the general sense that the project could proceed
with concurrent research. The possibility that research results
might indicate the need for locks was again raised, but not
addressed in any detail.45
Three months later, a research contract was awarded to the
University of Maryland in the amount of $798,600 to conduct
studies of the upper Bay.46 That work was conducted over the
next several years, as well as mathematical modeling work by the
Corps of Engineers to refine the estimates of the physical
responses of the system to the enlargement of the canal. By the
end of this study period (1972), the research was well along,
the plug in the end of the canal still in place (due to lack of
funds and delays related to the spoil disposal issue), and the
C & D Canal was essentially a dead issue as far as Bay water
quality discussions were concerned. Thus, in the space of just
a few years, an issue was defined on the basis of initially ob-
scure and largely technical data, was elevated through official
and journalistic attention to the status of a crisis, and passed
quickly and quietly to oblivion, to join such former issues as
Eurasian milfoil and explosives testing as items removed from
the Bay political agenda.
The 1960's marked the beginning of systematic attempts to
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address Bay governance from a comprehensive point of view. The
1933 Chesapeake Bay authority had been the first such attempt,
but it left little evidence except the document that records the
conference. Beginning in 1960, however, both states and several
federal agencies conducted studies or planning efforts that
purported to be comprehensive, and in 1971 there was a brief
attempt to address the interstate aspects of Bay governance.
Bay water quality matters, although not the only element of
these efforts, was certainly the dominant one, and was linked
to most of the others.
The first activity was a study of water resources manage-
ment in Maryland by the Board of Natural Resources. Although
not specific to the Bay, it addressed a number of Bay issues,
and made as its summary finding a recommendation that water
management be structured at the state level so that the rela-
tions between various functional areas could be addressed.47
This study was followed by a major study of water management in
Maryland, that led in 1964 to a wholesale reorganization of the
major natural resources agencies in the State. In particular,
with regard to the Bay, the Department of Tidewater Fisheries
was reconstituted as the Department of Chesapeake Bay Affairs,
with the responsibility for developing a comprehensive plan for
the management of the Bay, together with its more traditional
duties of managing the sport and commercial fisheries of tide-
water Maryland.48
Also during the early part of the decade, the Public Health
Service was developing a basin-wide perspective on the Susque-
hanna-Chesapeake system. Starting in 1963, it established a
formal Chesapeake Bay-Susquehanna River Basin Project, which was
scheduled to run for six years and involve a staff of up to 75
persons.49 The stated purpose of the project was to perform
basic water quality studies and develop a basin-wide framework
within which water quality and other management decisions could
be made. The study staff saw its mission to bring into sharper
focus the relation of the free-flowing river to the Bay.50 of
particular interest was the question of enrichment of the Bay,
which some of the researchers considered to be the most impor-
tant water quality problem for the Chesapeake.
After an ambitious start, the Project became the victim of
changing priorities within the Federal Water Pollution Control
Administration, which came into being in 1965 and took over the
water quality functions of the Public Health Service. The
Project completed a number of specific studies, but never
published anything approaching a comprehensive discussion of
the basin.
Meanwhile, the numerous political issues on the Bay that
involved questions of the effects of engineering changes raised
the idea that a physical model for the entire Bay would be a
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useful research tool. Various members of the Maryland Congres-
sional delegation particularly were impressed by the range of
Bay problems and the need to address them in an integrated way.
In 1965, the Congress authorized the Corps of Engineers "to make
a complete investigation and study of water utilization and
control of Chesapeake Bay Basin . . . including . . . navigation,
fisheries, flood control, control of noxious waste, water pollu-
tion, water quality control, beach erosion, and recreation." To
aid in this study, the Corps was authorized to build a hydrolic
model of the Bay.51 The resulting study covered a span of
approximately ten years, and led to the publications of the
multi-volume Existing Conditions Report and Future Conditions
Report,52 representing by far the heftiest if not the most illu-
minating discussion of the complex relations between various Bay
functional areas. The model was constructed in Matapeake,
Maryland, and, as of this writing, has seen limited use as a
research tool.
Several other federal studies focused on the Bay in the
latter part of the 1960's. Both the National Estuarine Pollu-
tion Study of the FWPCA5^ and the National Estuarine Study of
the Fish and Wildlife Service54 had special sections on Chesa-
peake Bay, where they discussed the complex inter-functional and
interstate aspect of the various water quality problems then
identified. The National Council on Marine Resources and Engi-
neering Development had a task group that made a case study of
the Bay, in order to formulate policy for the coastal zone.55
And NASA, eager to demonstrate its earth-resources capabilities,
established several projects and held a symposium on the appli-
cations of space technology to the management of the Bay.5Ū
The states were also active during the latter part of the
decade. Maryland held a Governor's Conference on Chesapeake
Bay in September of 1968 for the purpose of laying "a foundation
for the orderly development of Chesapeake Bay."5? That confer-
ence was followed in 1969 by the formation of an intrastate
planning body made up of the heads of most of the state agencies
having responsibilities affecting the Bay. This body, whose
function was made largely obsolete by the major restructuring
of state government in 1969 and 1970, was known as the Chesapeake
Bay Interagency Planning Committee, and its activities resulted
in the publication of a planning document.58 In Virginia,
similar focus was being placed on the James River, where at
least two studies and numerous shorter publications of VIMS
attempted to state the resource problems of the river, the
relations between various uses, and the research and management
needs posed by the increasing complexity and volume of use.5^
Seen from the perspective of over a decade, these planning
and study activities seem complex and intertwined. When con-
sidered in relation to the large number of important policy
issues and controversies that were being addressed during that
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same period, they are nothing short of mind-boggling. Their
principal contributions are no doubt in the ways in which they
influenced legislation, public attitudes, and management prac-
tices, that have since been adopted. They deserve attention
today from anyone who is interested in developing similarly com-
prehensive approaches to problem definition, management, of
planning for the future of the Bay.
The Bay has long been an irresistable subject for journa-
lists. In the nineteenth century, articles abounded that des-
cribed the delights of the Chesapeake, the abundance of its
resources, and the ruggedness of its watermen. These continued,
and indeed increased, in the twentieth century, with frequent
treatments of the historical attractions of the Bay as well.
The communities of Smith and Tangier Island, the plantations of
the James River, and the Naval Academy at Annapolis were
perennial favorites. National Geographic alone has had at least
a half-dozen articles featuring the Bay in the last fifty years.
In the years that marked the lowest period of fisheries
harvests in Maryland, particularly from the thirties to the late
fifties, a favorite topic of Maryland feature writers was the
decline of a once-great industry, with titles such as "The
Vanishing Oyster,and "Oyster Stew."61 By the early 1960's,
a new kind of article came to be written, which raised questions
about the health of the Bay and discussed in varying degrees of
detail the problems facing the Bay and its manager. A sampler
of titles reflects the tone and content of these articles:
"Chesapeake at Bay," "Does Pollution Threaten the Bay," "The Bay
on Borrowed Time," "Our Beleagured Bay," "Are They Killing Our
Bay?," "The Bay: An Abused Treasure," "Great Ugly Changes Mar
Chesapeake," "Changes Imperil Bay Resources."62
These articles show a remarkable similarity of format. Al-
most without exceptions they speak of the once boundless treas-
ures of the Bay, as reported by early settlers. They detail the
more quantified aspects of the Bay's resources, particularly
the great oyster harvests of the late nineteenth century. They
recount the declines, real and imagined, of various commercial
and sport species of fish and shellfish; they itemize threats to
the Bay in the form of specific projects, such as Calvert Cliffs
or the C & D Canal, as well as more generalized threats such as
increasing urbanization or industrialization. They quote Bay
scientists and administrators, as well as persons who one state
official dubbed "professional citizens," meaning persons who
make their living heading environmental or citizens groups; they
invariably make some reference to the "health" of the Bay, often
comparing it in some way with reputedly "dead" bodies of water
such as Lake Erie, Lake Michigan, or Delaware Bay. They end
with a prognosis for the Bay, either optimistic, pessimistic,
or problematic, depending no doubt on the humor of the author
and the relative weight he gave to the various spokesmen he
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interviewed or quoted.
From the standpoint of this study, these articles have an
importance that is as substantial as it is immeasurable. They
clearly had a pronounced influence on the politics of the Bay
during this period. It is difficult to sort out cause and ef-
fect relations, but there are frequent references by scientists,
legislators, and state officials to the state of public opinion
as reflected in and affected by the press. Any detailed assess-
ment of the dynamics of water quality issues during this period
would have to include the press (both daily and periodical) as
a major element.
Not only did this period see a quantum leap forward in the
size and complexity of water quality issues, it also saw the
dividing line between water and land use issues blur and occa-
sionally disappear. The relation between land activities and
water quality took several forms. Most directly, this period
saw the general acceptance of, and first action on, the role of
non-point source pollution on the quality of the Bay. Second,
there came to be some recognition that general regional develop-
ment had direct impacts on water quality. Third, there were
a number of controversial projects that were opposed on water
quality grounds, but at root were conflicts over land use. And,
finally, there developed a special concern for the role of wet-
lands in the physical and biological quality of the Bay.
That land runoff was a potential pollutant had long been
recognized in the Bay region. Sediment was acknowledged as a
cause in the reduced run of anadromous fish well before the
twentieth century. Runoff from farmland was identified as a
potential source of bacterial pollution by the Baltimore Sew-
erage Commission in 1897. The silting over of oyster bars as a
result of heavy soil erosion was at least mentioned in the
nineteenth century, if not greatly worried about. But it was
after 1960 that government officials and institutions began to
address the issue directly, beginning with soil erosion in
Maryland.
The Maryland State officials had discussed the impact of
soil erosion and sedimentation prior to 1960,63 and the Water
Pollution Control Commission had concentrated on a specific
aspect of soil erosion, that arising from sand and gravel opera-
tions, since the late 1940's. Special attention to both these
problems was given in the Patuxent watershed. The Board began
to worry about the heavy development of housing in the Bowie
area, where it was announced a large new community was to be
developed in a previously agricultural area. This was also the
same stretch of river that had a number of sand and gravel
operations, and was not very far from tidewater, where there
had long been concern for the gradually diminishing depth of
water in the upper estuary. By the mid-1960's, with substantial
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interest from a number of legislators and local officials, the
State developed a sediment control act for the Patuxent River
watershed.64 This act basically required local adoption of
soil containment practices for large construction projects,
backed by State enforcement powers and technical assistance.
This program was adopted and successfully implemented on the
Patuxent, and was extended to the entire State in 1969.65
Both Maryland and Virginia also faced a relatively new
problem during this period with the advent on a large scale of
livestock herds and feed lots near tidewater. This was consid-
erably more of a problem in Virginia, where the concentration of
hogs and cattle was higher. Large-scale feedlot operators were,
in general, required to contain, if not treat, the waste from
their operations, but extensive areas in Virginia were closed to
shellfish harvesting at least partly as the result of agricul-
tural land runoff. One of the difficulties of dealing with this
problem was the uncertainty of causes of bacterial contamination.
In a rural area there might be several sources contributing to
excessive fecal coliforms: the discharge from the nearest sew-
age treatment plant; discharge from septic tanks; bacteria from
wild animals, such as muskrats and geese; farm animals; and
boats, particularly when concentrated in marinas. The difficulty
of pinpointing sources, particularly over time, makes it diffi-
cult, both politically and technically, to require remedial
action by one sector, even though it might be the most suspect.
Runoff in the rural areas of Virginia has thus required the
closure of considerable areas to shellfish harvest, without any
clear prospect for corrective action.
Few areas in the country experienced more rapid growth than
the Washington metropolitan in the 1960's. One consequence was
an attempt by local governments to control both the rate, char-
acter, and environmental impact of that growth. A variety of
means were available: conventional zoning, performance stan-
dards on new construction, and extension of public services,
particularly roads, water, and sewers. In addition, the unin-
tentional but pervasive sewer moratoria that prevailed had the
effect of curtailing or redirecting growth. Many of the reasons
for growth management extended well beyond environmental con-
cerns, but protection of streams and enhancement of the Potomac
estuary were also recognized as purposes for which storm water
management, sediment control, and open space protection were
justified. The specific programs adopted by the several major
jurisdictions are too numerous and complex to itemize, but it
is especially pertinent to note that local jurisdictions were
recognizing that the heavy costs they were going to be required
to bear in achieving advanced waste treatment of sewered wastes
would perhaps be in vain if corresponding reductions were not
also made in the waste loadings from non-point sources. This
issue came under formal consideration on a regional basis under
the aegis of the watershed planning provisions of the Federal
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Water Pollution Control Act of 1972.66
It is a truism of environmental regulation that development
projects are often opposed on environmental grounds when the
actual reasons for the objection lie elsewhere. Proof of this
in a particular instance is difficult, because it requires an
inquiry into the motivations of those who oppose a particular
project. This is well illustrated by the early experiences of
the Maryland Wetlands Act, where in case after case a tidewater
construction project would be opposed for reasons having nothing
to do with the intent of the act. In general, opposition of
small projects, such as bulkheads and piers was based on dis-
putes over riparian rights or questions of property boundaries.
In many instances, opponents of a particular project did not
even bother to address the wetlands protection issues involved.67
In the cases that follow, the judgment that the opposition
was primarily over land use rather than water quality is the
authors'. The record is clear that, at least, the issues were
mixed. Therefore, these cases illustrate at least that non-
water quality issues became a factor in decisions that were
reviewed or decided made primarily on the basis of water quality
and related environmental considerations. Steuart Petroleum and
Harry Lundenberg School of Seamanship are two cases, separate
physically and legally, but they took place in the same neigh-
borhood at about the same time, and were opposed by essentially
the same local interests and by the Chesapeake Bay Foundation.
The two cases, therefore, illustrate a common principle that
local opposition based primarily on land use issues can have a
definite and perhaps decisive effect when expressed through
government involvement based on water quality.
Steuart Petroleum operated an oil handling and shipping
facility on the Potomac River in lower St. Mary's County, the
primary function of which was to supply the Washington metro-
politan area with petroleum products. Ocean-draft ships would
unload at the facility, and the oil or other petroleum product
would be transferred to barges or other shallow draft craft for
transport up the Potomac. In the late 1960's, Steuart announced
its intention to apply for status as a free port, which would
allow it to import foreign crude oil duty-free. What was an
oil handling facility would become a refinery.68
Local opposition was swift and intense. A Potomac River
protective association was formed, and opposition was focused on
the fact that a building permit was required from the county
commissioners before work could proceed. Opponents concentrated
on the Commissioners, and alleged that the tax advantages of a
major new facility, which was a prime attraction to a relatively
poor rural government, would be more than offset by losses
suffered by area watermen, recreation-oriented businesses, and
by property owners due to the inevitable water quality
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degradation that the oil facility would cause. Much was made of
numerous oil spills that had occurred at the facility, and testi-
mony from watermen was advanced that argued that catch had de-
clined in the area due to oil pollution. Despite the Company's
claims that it would operate an environmentally safe facility
(and despite the fact that there was a Coast Guard station in
the shadow of the facility, thereby making it virtually inevit-
able that any violations of pollutions statutes would be detected
and prosecuted), the Commission voted to deny the necessary
county permits. The Company thereafter withdrew its application
for free-trade port status, and abandoned its plans. (Another
refinery proposal was advanced by Steuart in 197 3, which was
also successfully opposed by local interests.)
Press coveraqe claimed it as an example of citizen concern
for clean water.69 it is arguable, however, that this was not
the prime issue. The threat to local water quality was nebulous
and unsupportable in advance of the construction of the facility.
What was clear was that the facility would represent a major
industrial intrusion, in this case an expansion, into an area
notable for its isolation and natural charm.
On the other side of the narrow peninsula from the Steuart
facility, St. George's Creek was being attacked by another in-
truder in the form of the Harry Lundenberg School of Seamanship.
The school was operated by a small but politically influential
union to train young people for maritime trades. In order to
provide adequate draft and berthing space for the many vessels
used by the school, the union embarked on a massive dredging
campaign. Under permits from the Department of Water Resources,
it operated its own hydraulic dredge, day and night, to dredge
several hundred thousand yards of material, which it deposited
within a large upland diked area across the creek from the
school.70
Local opposition to the project was intense. It was al-
leged that the project had resulted in heavy sedimentation of
oyster beds, that there had been oil spills from the dredge, and
that the school was exceeding and breaking its permit restric-
tions in various ways. Neighbors also objected, understandably,
to the night operations of the dredge, which made considerable
noise. As a result of these complaints, various additional
conditions were placed on the operations, and it was subject to
several temporary shutdowns for violations.
In addition to the main dredging near the school, a permit
had also been applied for to dredge a small cove on which the
school owned other property, across and up the creek. With the
passage of the Maryland wetlands law in 1970, a hearing on this
project was held in May 1971. Local objectors to the project
were numerous and passionate. They presented a litany of of-
fenses and adverse consequences of the school's other dredging
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activities, claiming above all that the school was damaging the
fisheries resources of the creek through siltation, destruction
of the natural bottom, and oil and other wastes from the dredge
and other vessels. Investigation by various technical special-
ists from the Department of Natural Resources suggested that
these claims were probably not well founded, and that if the
creek was undergoing environmental change it was due to a large
number of factors, such as development in the watershed and
along the shoreline, which was having a greater cumulative
effect on the creek than would the relatively localized dredging
by the school. Nonetheless, the license was denied, on the
basis that the wetlands act established a presumption that undis-
turbed wetlands (in this case submerged lands) were in the public
interest, and anyone wishing to alter or destroy wetlands had
to make a case that there were offsetting benefits to be derived
from the project. In this instance, the school was found not to
have made a sufficiently strong case that the project was bene-
ficial. Indeed, it appeared to the hearing officer that the
school's primary objective was to convert a shallow cover into
a bulkheaded harbor simply out of a seaman's preference for
deep water and a firm shoreline.
What emerged from the testimony of many opponents of the
project was that a primary concern was the very presence of the
school itself. The school, like Steuart, was an intruder that
threatened tc alter the character of the area for the longtime
residents and the retirees that enjoyed its isolation and
natural beauty. The school portended continuing physical changes
to the area, and brought large numbers of strangers into an area
that had been socially insular and stable. Certainly there were
water quality issues involved with both projects, but the over-
riding concern was over more fundamental social, economic, and
aesthetic changes that these two neighboring facilities repre-
sented. The water quality and wetlands statutes administered by
the state simply provided the most visible means for opposing
them.
Concern for wetlands protection became a national environ-
mental issue in the 1960's. Numerous Eastern states were
enacting wetlands protection laws in the late 1960's and early
1970's. On the Bay, with its extensive tidal marshlands and
shallow submerged lands, Maryland enacted such a law in 1970^1
and Virginia in 1972.72 Wetlands were recognized as important
in the life cycles of waterfowl, wildlife, fish and shellfish,
as mechanical buffers against erosion and tidal flooding, as
sediment traps, and as sources of beneficial organic matter and
nutrients for aquatic life. In the last two categories, particu-
larly, they were seen as having a beneficial water quality role.
(In Maryland there was also a major impetus to prevent land
developers from enriching themselves by creating new land out of
the public domain by dredging and filling. Here also, wetlands
projects had land use implications that were often of more
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public concern than the impact on the aquatic environment.)
Although the Virginia statute was not implemented until
after the closing date for this study, the Maryland statute op-
erated for approximately two years. Perhaps its principal
interest lies in the fact that it provided for the first time a
state law that required a broad examination of environmental
issues relating to tidewater development. A project was to be
examined based on the "ecological, economic, recreational, de-
velopmental, aesthetic, and agricultural values" it affected.
This is an admittedly broad and general list, and the act gave
no guidance as to what these terms meant or how they were to be
weighed and balanced. Nonetheless, most tidewater development
projects were brought under a broader review than they had
previously been. The wetlands process was also tied indirectly
to a more specific water quality evaluation, based on a complex
linkage with Federal statutes. All activities requiring a state
wetlands license also required a permit from the Corps of Engi-
neers under the provisions of the Rivers and Harbors Act of 1899.
This act, in turn, was linked to the Federal Water Pollution
Control Act by administrative agreement between the Corps and
the Federal Water Pollution Control Administration (later EPA).
The Corps would not issue its permit without state approval,
including a certification from the state water control agency
that water quality standards would not be contravened by the
project. Thus, in a crude and largely unintentional way, tide-
water projects came under a form of state-federal review that
included environmentally based land use analysis (wetlands
considerations), protection of navigation (the historical pur-
pose of the Rivers and Harbors Act), and water quality concerns
(through the linkage to the FWPC Act). Although as a statutory
and administrative framework it proved inadequate to deal with
the complexities of issues like Calvert Cliffs and Hart-Miller
Island, it at least represented a start in bringing together
public consideration of the wide range of water quality and
related environmental issues that the controversies of this era
demanded. Clearly what was needed was not a static comprehen-
sive plan for the Bay, which had been a popular cry of the late
sixties, but rather a process whereby the various and often
competing interests of the Bay could be evaluated and balanced,
based on some broad but reasonably explicit public policies.
In virtually all cases, at least the starting question has been,
and will continue to be, "What effect will this project have on
the water quality of Chesapeake Bay?"
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Section VII Notes
1. A. H. Paessler, private interview, Richmond, Va., December
1980.
2. Reference to these Industrial Waste Symposiums appear in
the Annual Reports of the Water Pollution Control Commis-
sion (after 1964 the Department of Water Resources) from
1961-1968.
3. Commissioners of Fisheries of Virginia, Annual Report,
Fiscal Years 1960-1961, p. 12.
4. Virginia Marine Resources Commission (formerly Commis-
sioners of Fisheries), Annual Report, Fiscal Years
1970-1971, p. 24.
5. Ibid., Fiscal Year 1972, p. 23.
6. State of Maryland, Proceedings of the Governor's Conference
on Chesapeake Bay, Annapolis, 1968, p. II, 93.
7. Baltimore Sun, May 16, 1969.
8. See Annual Reports of the agency spanning this period.
9. John B. Pleasants, "The Tidal James, A Review," Special
Report #18, Virginia Institute of Marine Science, 1971.
10. M. M. Nichols, The Effect of Increasing Depth on the
Salinity of the James River, Geological Society of America
133, pp. 571f., VIMS contribution #382.
11. Virginia Marine Resources Commission, Annual Report, Fiscal
Year 1972, p. 23.
12. Pleasants, oĢ. cit., p. 109.
13. 1950 Code of Virginia, section 28.1-147.
14. Harold K. Kanarek, The Mid-Atlantic Engineers: A History
of the Baltimore District U. S. Army Corps of Engineers,
1774-1974, Washington, D.C., 1977, p. 117.
15. Md. Board of Natural Resources, Annual Report, 1961,
126
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Appendix B, p. 151 ff.
16. Ibid., p. 153.
17. Ibid., 1966 Report, pp. 8-9.
18. Letter of Joseph H. Manning, Director of the Maryland De-
partment of Chesapeake Bay Affairs, to Senator William
James, April 16, 1971. Files of the Department of Natural
Resources.
19. Md. Department of Natural Resources Open File, "Submerged
Lands Commis s ion."
20. Ibid.
21. This was extracted from various files of the Maryland De-
partment of Natural Resources. The letters cited are:
James B. Coulter to Baltimore District, U. S. Corps of
Engineers, dated November 17, 1970, and Joseph H. Manning
to Paul McKee, dated August 27, 1971.
22. Maryland Department of Chesapeake Bay Affairs, Wetlands
Hearing File, Hart-Miller Island Spoil Disposal Area.
23. As this report was being prepared, the principal citizens
opponents announced that they were abandoning their opposi-
tion to the project. Radio news item, March 1981.
24. "Patuxent Thermal Studies, Summary and Recommendations,"
Natural Resources Institute Special Report No. 1, College
Park, Maryland, January 1969.
25. "Chesapeake at Bay: A Chilling View of the Thermal Threat,"
Sunpapers Reprint, undated, unpaged.
26. Maryland Department of Natural Resources, Office of the
Secretary, "Calvert Cliffs Nuclear Power Plant" File.
27. D. W. Pritchard, "An Appraisal of the Probable Effects of
the Morgantown Electric Power Plant on the Estuarine Envi-
ronment of the Potomac River," mimeo, undated (letter of
transmittal to Senator Edward Hall, dated March 3, 1969),
p. 1.
28. Ibid., p. 8.
29. L. Eugene Cronin, "Letter to Donald W. Pritchard," March 6,
1969, pp. 3, 4.
30. Ibid., p. 4.
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31. Ibid., p. 6.
32. William M. Eaton (Chairman), Nuclear Power Plants in
Maryland, Report of the Governor's Task Force, Annapolis,
Maryland, December 1969.
33. Ibid., p. 51.
34. L. Eugene Cronin and Joseph A. Mihursky, press release
dated March 3, 1970. Mimeo, contained in "Calvert Cliffs"
File, Office of the Secretary, Maryland Department of
Natural Resources, Annapolis.
35. Eaton, 0Ģ. cit., p. 2, Appendix C.
36. Ibid., p. 26, Appendix D.
37. Baltimore News American, August 28, 1976.
38. Baltimore Gas & Electric Company circular to customers,
"Energy News," May 1981.
39. A. H. Paessler, private interview, Richmond, Virginia,
December 19 80.
40. Donald W. Pritchard, private interview, Ocean City,
Maryland, October 1980.
41. County Record (Queen Anne's County, Maryland), February 26,
1969.
42. Committee on Public Works, House of Representatives, "The
Chesapeake & Delaware Canal," April 7, 8, and May 21, 1970,
Government Printing Office, Washington, D.C., 1970.
43. Ibid., pp. 113-125.
44. Ibid., p. 273.
45. Ibid., p. 299, passim.
46. Letter, Corps of Engineers Contracts Office to Governor
Marvin Mandel, dated October 8, 1970. Contained in
Submerged Land's Commission Vertical File, Department of
Natural Resources Library, Annapolis.
47. Board of Natural Resources, "Report of the Water Resources
Committee," 1961 Annual Report, p. 144 ff.
48. 1964 Laws of Maryland, Chapter 82.
49. FWPCA, "Chesapeake Bay: Susquehanna River Basins Project
128
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for Water Supply and Water Quality Management," Government
Printing Office, Washington, D.C., 1965 (Revised June 1966).
50. William Colony, private interview, Crystal City, Virginia,
September 1980.
51. Section 312, Rivers & Harbors Act of 1965.
52. Baltimore District, U. S. Army Corps of Engineers, Chesa-
peake Bay: Existing Conditions Report (7 Volumes) 197 3; and
Future Conditions Report (undated)(12Volumes).
53. Federal Water Pollution Control Administration, U. S. De-
partment of the Interior, National Estuarine Pollution
Study, Vol. Ill, Washington, D.C., 1969.
54. Fish & Wildlife Service, U. S. Department of the Interior,
National Estuary Study, Vol. 3, Washington, D.C., 1970.
55. Ibid., p. 66.
56. NASA, "Remote Sensing of the Chesapeake Bay: Conference
Report," Wallops Island, Virginia, 1971.
57. State of Maryland, Proceedings of the Governor's Conference
on Chesapeake Bay, Annapolis, 1968.
58. Wallace, McHarg, Roberts, and Todd, Maryland Chesapeake
Bay Study, Philadelphia, 1972.
59. See Pleasants, ojd. cit. , and William Hargis, "James River
Basin: Great Natural Resources or Problems of Developing
the James River," VIMS, mimeo, 1963.
60. Baltimore Sun, July 6, 1943. See also articles in the Sun,
March 30, 1931, and April 20, 1950, and Baltimore Evening
Sun, January 14, 1939.
61. The Wall Street Journal, April 24, 1953.
62. These articles are contained in the Vertical Files of the
Maryland Room, Pratt Memorial Library, Baltimore.
63. See Abel Wolman, John C. Geyer, and E. E. Pyatt, op. cit.
64. Annotated Code of Maryland, Natural Resources Article,
Title 8, Subtitle 12, 1974.
65. Ibid., Subtitle 11.
66. P.L. 92-500, Section 208.
129
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67. This is drawn from the personal experience of John Capper,
who was Hearing Officer for approximately 150 Maryland
wetlands cases in 1970-1971.
68. Maryland Department of Natural Resources, Office of the
Secretary, "Steuart Petroleum" File.
69. Evening Star (Washington, D.C.), May 16, 1969.
70. The various dredging projects of the Harry Lundenberg
School are contained in Maryland Department of Water
Resources (now Water Resources Administration) waterway
improvement files.
71. Annotated Code of Maryland, Natural Resources Article,
Title 9, 1974.
72. Virginia Acts of the General Assembly, Chapter 711, 1972.
130
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SECTION VIII
SUMMARY AND CONCLUSIONS
Concern for the quality of Chesapeake Bay is a recent de-
velopment. Historic concerns were more particular.
Prior to the twentieth century, attention focused upon the
health of people, not the health of the Bay. Fledgling medical
science came to recognize that epidemics of malaria, yellow
fever, dysentary, and cholera, related to the Bay's "disease-
engendering and pestilential conditions."^ Port wardens were
charged with the task of keeping channels unobstructed while
courts moderated disputes between neighbors in congested har-
bors. Oysters and finfish were inexhaustible.
The turn of the century brought change. Cities responded
to their public health problems by developing municipal water
supplies and by building confined sewer systems to carry off
wastes from residences and businesses. Bay tributaries adjacent
to the cities became the sink into which these vast quantities
of liquid were emptied. The oyster industry, which had peaked
in the 1880's, had begun its inexorable decline due to over-
fishing. With scarcity came conflicts Marylanders versus
Virginians, tongers versus dredgers, public-bed oystermen versus
oyster-farmers. The oyster industry suffered an even greater
setback when oysters were indicted as a carrier of typhoid fever.
Following the turn of the century, oyster interests got
results in response to their demands for sewerage treatment.
The City of Baltimore's facility on Back River was the first
major purification plant constructed in this country. But it
by no means resolved the "oyster scare." Epidemics in the
mid-1920's, which were linked to raw oysters, led to water
quality and processing standards for oysters overseen by the
U. S. Health Service. Maryland reduced oyster bed closures
with a program of sewage treatment plant construction that
led the nation, but Virginia legislators and courts remained
unresponsive to the problem.
Meanwhile, the bacterial discharges which polluted oyster
beds were joined by other effluents. In port areas the oil
dumped from the bilges of vessels plying the Bay was mixed with
the ubiquitous discharges from food processing plants. In
addition, industrial discharges, which were concentrated in
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Curtis Bay near Baltimore and on the York River in Virginia,
drew the same attention. Fishery management questions continued
to attract much more attention, however. Pollution (with the
exception of the large oyster bed closures in Virginia) was a
localized and narrow issue. Debates raged in Maryland and
Virginia in the 1930's and 1940's over the appropriate practices
for the harvesting of crabs and menhaden, as well as oysters.
It was not until the end of World War II that the protection
of water quality became an explicit policy in both states. Im-
petus for these polices came largely from sport fishermen who
were most concerned about the effect of pollution on small free-
flowing streams rather than in the Bay. Nevertheless, periodic
fish kills in tidewater areas, the persistent problem of oyster
contamination in Hampton Roads, and the apparent decline of
oyster productivity near the York River pulp mill contributed
to a growing concern for Bay pollution.
The post-war years saw a considerable expansion in the
scientific and technical work done to understand tidewater
quality issues, and by the early 1960's new water quality issues
joined the long-standing attention given to municipal and in-
dustrial wastes. Concern for the effects of sediments and
nutrients caused attention to be directed to activities through-
out the Bay watershed. The problems associated with the dis-
posal of dredged material became a matter of intense interest,
particularly in Maryland. By the mid-1960's, waste heat from
electric generating plants became a prime concern in Maryland.
Also, at about the same time, controversies arose in both states
over a number of engineering projects that had the potential to
alter the circulation and salinity patterns of biologically
significant areas in the Bay. Throughout the decade of the
1960's, the Washington metropolitan area wrestled with the
problem of how to dispose of the wastes of a rapidly growing
metropolitan area, while at the same time restoring the quality .
of the badly polluted upper Potomac estuary, so that it could
be used for recreation.
By 1970, attention had shifted to a concern for the overall
health of the Bay. Science played a major role in broadening
the perspective. Traditionally, biologists and physical scien-
tists were most active in Bay affairs. They were called upon to
study declines in species and fish kills, and to project the
likely effects brought on by public works projects, new industry,
or waste disposal plants. The scientist also played key roles
on boards and commissions that make policy recommendations to
politicians and the public. They sought after, and received,
public funds for research, and to monitor public programs.
Finally, they functioned in managerial roles, where they made
economic, political, administrative, and legal decisions. And,
as the scientific community became enthralled with the new
science of ecology with its emphasis on the relationship between
132
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organisms and their environment, scientists playing all of these
roles raised the public's consciousness that the Bay is a single
system.
Journalists have also played a role in creating the impres-
sion that Chesapeake Bay is a "threatened treasure." The Bay
has long been a favored topic of newspaper attention. Articles
about the Bay region can be grouped in three classes: travel
stories extolling the attractions of the region; resource
stories, giving accounts of the bounty of the Chesapeake (and,
in some cases, the failure of the states to capitalize on the
resource potential of the Bay); and stories expressing alarm
over the Bay's decline. The last, of course, related directly
to our account of water quality issues. The first two predomi-
nated up to about 1960, with the latter taking over thereafter.
Finally, the citizenry itself has contributed to the con-
cern for the Bay's well-being. Intervenors opposed to a trans-
mission right-of-way, or diked spoil disposal site, had the good
public relations sense to argue that a new power plant would
result in thermal pollution or that a dike failure could result
in widespread dispersal of heavy metals. Publicity attendant to
controversies of this sort increases public anxiety over the
health of the Bay.
Various governmental institutions and programs have evolved
to respond to Chesapeake Bay problems. Until the formation of
oyster navies in both states in the 1860's, government involve-
ment with the Bay was confined to legislation pertaining to the
harvesting of fish and prohibiting the fouling of streams, both
of which were enforced by local sheriffs; and to action by the
courts under common law to resolve disputes about rights rela-
ting to navigation, shoreline access, and nuisance. With the
rise of economic activity in the fishery, and concern for
experienced or potential declines in stocks, both states formed
boards or commissions to study, advise on, and finally manage,
marine fisheries. These boards evolved into the Virginia Marine
Resources Commission and the Maryland Tidewater Administration
that exist today. This evolution has been relatively simple in
Virginia, with only one simple name change in the last 80 years.
In Maryland, constant legislative experimentation, and, in the
last 12 years, organizational change within the Department of
Natural Resources, has produced at least ten different entities
responsible for the management of tidewater fisheries resources.
Despite these changes, the chain of attention to the needs of
the sport and commercial fisheries interests appears to have
remained intact.
Both states formed boards of health in the latter part of
the nineteenth century, which evolved into the present major
state departments. These have both retained responsibility for
municipal sewage disposal and oyster sanitation. In Maryland,
133
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the state health agency has been a major factor in Bay manage-
ment since the early 1900's, when, for roughly 40 years, it was
responsible for both industrial and municipal waste treatment
regulation, with support from the various conservation agencies
existing over that time.
In 1939, Virginia created a regional sanitary authority for
Hampton Roads, and by 1948 both states had state-wide pollution
control agencies in place. Again, in Virginia, this agency re-
tained its name and function throughout the period of this study.
In Maryland, there were a number of administrative and name
changes, and functional expansion to include other water manage-
ment responsibilities, but the water quality function remained
intact. In Virginia, the Water Control Board had primary respon-
sibility for both municipal and industrial waste control; in
Maryland, that responsibility was split between the Health De-
partment and the Water Pollution Control Commission.
The three permanent research institutions on the Bay,
Virginia Institute of Marine Science (1940), Chesapeake Bio-
logical Laboratory (1925), and Chesapeake Bay Institute (1947),
have all received a substantial amount of their financial
support from state and federal governments, and, in the case of
the first two, have been official state agencies for at least
part of their histories. Their establishment and their subse-
quent growth to become major factors in government decision-
making, can, therefore, appropriately be mentioned under
government evolution.
Federal agencies are represented first by the Corps of En-
gineers, which has had a continuing role in the development of
navigation facilities on the Bay, and has, since 1899, regulated
physical development on navigable waters, and administered oil
containment, nuisance weed removal, and debris removal programs,
principally centered in the major port areas. The U. S.
Fisheries Commission, which became the Bureau of Commercial
Fisheries, has played an important role in backing state fish-
eries management programs and conducting research. More impor-
tant to the water quality story, the Public Health Service was
an important source of early investigation on the Bay, later
supervised the shellfish sanitation program of the states, and,
after World War II, administered the grant and technical assis-
tance programs established by the various federal water pollu-
tion control acts, until this function was transferred to the
Department of the Interior in 1965 and later established in an
independent agency, the Environmental Protection Agency.
We have completed a 300 year sweep through the history of
a vast sprawling estuary in Chesapeake Bay. We close with
several observations.
1. Chesapeake Bay has become an object of animistic concern.
134
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Animism is the belief that objects have a natural life and an
indwelling soul. Popular opinion suggests that the Chesapeake
is in danger body and soul. Newspaper headlines ask, "Is the
Bay Dead?," while the Chesapeake Bay Foundation exclaims, "Save
the Bay!" Governor Mandel of Maryland made perhaps the strongest
expression of this view when he said:
We feel an almost sacred obligation to the
Chesapeake Bay and its tributaries . . . There
is concern for the health of man and some
parochial interests of those whose lives will
be disturbed, but the predominant concern is for
the Bay itself, the Bay as a living entity.2
These concerns, however, leave unanswered the question of how
the Bay should be governed.
2. Much of the discussion of governance of the Bay proceeds
on the basis of an idealized model of how Bay management op-
erates. The model first assumes preparation of a scientific
baseline study which establishes the present condition of Chesa-
peake Bay. Next comes the adoption of standards which choose
the desired level of environmental quality for Bay waters.
These are followed by the adoption of a comprehensive plan which
selects the preferred uses of Chesapeake Bay from among those
consistent with the quality standards. Finally comes an imple-
mentation strategy whereby government puts the plan into effect
through public works and private regulation. This study indi-
cates that the reality of Bay management is much different.
3. In theory science is called upon to provide a "perfect"
baseline of information which government can then use to
rationally manage the Chesapeake Bay. In reality, scientists
provide information which governments may employ in response to
crises conditions on the Bay. Scientists also play a major
role in shaping public perceptions of the problems of the Bay;
scientists sometimes promote as problems the areas of research
which most interest them.
4. When regulating the quality of Bay waters, governments
often have responded to public opinion and political pressure
rather than to thoughtful analysis of environmental and economic
conditions. The fishery industry in general, and oystermen in
particular, have been a very effective "clean water" lobby.
Their demands for treatment of sewage, although selfishly moti-
vated, have made a major contribution to improved water quality.
5. Governments are sometimes said to manage Chesapeake Bay.
This is not a very accurate description of government efforts.
The resource is too complex, knowledge too limited, and govern-
ment too weak for Bay "management." At most, governments
influence the Bay. And, sometimes, a governmental response to
135
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a problem subsequently becomes a problem. For example, the
early twentieth century decision to dispose of sewage by the
"water-carriage dilution" method today contributes excessive
nutrients to the Bay.
The basic concept that man could substantially alter the
resources of the earth had been expressed by George Marsh
Perkins in his book, The Earth as Modified by Human Action, in
1863. Although this viewpoint did not come to occupy a central
place in the history of science for another century, scientists
from time to time expressed concern for the Bay. In 1884, Dr.
Chancellor, Health Commission of Maryland, suggested, at least
by implication, that the Bay could be ruined by the sewage from
Baltimore, and like many of his late twentieth century counter-
parts, he referred to the dead and dying Bays of Europe and
other parts of the world.3 in the 1930's, the future of the Bay
was discussed at the Chesapeake Bay Authority Conference and
Dr. Truitt of the Chesapeake Biological Laboratory raised
questions about the combined and cumulative effects of waste
disposal.4
The ultimate question of whether man is ecologically
endangering Chesapeake Bay is beyond the scope of this report
and the expertness of its authors. Some argue that the Bay,
as a physically open system, cannot be killed in any biological
sense, and that man's perturbations are insignificant when
compared to the changes wrought by natural phenomena such as
Tropical Storm Agnes in 1972. But there is little question that
technology has increased man's capacity to have a bad influence
on the Bay. Two events, which occurred after the study period
ended, stand as stark witnesses to this capacity. A kepone
spill on the James River has permanently poisoned its fishery;
engineers and scientists recommend no clean-up. The recent
events at Three Mile Island on the Susquehanna River, the Bay's
major source of fresh water, environmentally threatened not only
the whole Chesapeake Bay, but the whole Northeastern United
States.
136
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Section VIII Notes
1. Thomas Buckler, A History of Epidemic Cholera (Baltimore,
1851), p. 40.
2. Statement of Governor Marvin Mandel, before the Subcommittee
of Inter-governmental Relations of the Senate Committee on
Government Operation, February 4, 1970.
3. Maryland Board of Health, Report 1884, House and Senate
Document I, 1884, "... in the course of time, Chesapeake
Bay will become a distillation of all the filth of Baltimore
City," p. 178.
4. See pp. 76, 82, above.
137
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