National Council On Public History, University of California Press The Public Historian

Groundwater and the Law: Records v.
Recollections
Author(s): Craig E. Colten
Source: The Public Historian, Vol. 20, No. 2 (Spring, 1998), pp. 25-44
Published by: University of California Press on behalf of the National Council on Public
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Groundwater and the Law:
Records v. Recollections
CRAIG E. COLTEN
Introduction
Statements offered in current environmental litigation often make the

argument that legislative bodies failed to extend protection to groundwaters
until the 1970s.1 This assertion attempts to invert the legislative process by
suggesting that only with the extensive sampling and analysis of groundwa-
ter stimulated by relatively recent federal legislative efforts has society
recognized the problem of groundwater contamination. In fact, the oppo-
site is true. Intense public concern impelled congressional action. Further-
more, recent environmental laws were not the first federal efforts to protect
groundwater, nor do they represent a watershed in terms of social recogni-
tion of an environmental problem. The federal government showed interest
in groundwater quality and quantity throughout this century and explicitly
sought to improve the quality of surface and underground waters in 1948
CRAIG COLTEN is associate professor of geography at Southwest Texas State University and
director of the Center for Hazards and Environmental Geography. He came to that position
after nearly a decade with the Illinois State Museum and two years with PHR Environmen-
tal Consultants. Since 1993 he has served as an expert witness in more than a dozen
environmental cases. He co-authored The Road to Love Canal, which explored historical
dimensions of past waste management practices.
1. Examples of this viewpoint appear in Fred C. Hart, "Superfund Reauthorization: It's

Not the Time to Revise History," Mealey's Litigation Reports: Insurance 9, no. 29 (June 6,
1995): 17-28 and Richard Dewling, Report of Richard T. Dewling, unpublished report
prepared for Koppers Company, Inc., Koppers Company, Inc. v. Aetna Casualty and Surety
Company, et al., U.S. District Court for the Western District of Pennsylvania, Civil Action 85-
2136, 1994.
25
The Public Historian, Vol. 20, No. 2 (Spring 1998)

? 1998 by the Regents of the University of California and
the National Council on Public History
26 * THE PUBLIC HISTORIAN
legislation. More importantly at the state level, common law allo

who suffered groundwater damage to seek redress in the ninet
tury, statutes offered both implicit and explicit protections thro
twentieth century, and agency regulations addressed groundwa
early in this century as well. The statement of an environmental pr
for example, claiming that groundwater did not become a "primar
sis added] focus of national attention until the late 1970s,"' may
kernel of truth, but it overlooks a longstanding concern within t
Historical assessments of past events by environmental pract
overall, present a challenge to historians. Are the personal reco
environmental administrators or practicing environmental engi
history? One must extend the same critical eye to their work a
historical accounts. Is their use of the historical record appr
representative? Are their conclusions substantiated by the
record? How does one critique their comments? Certainly we w
observations of key players in past events, but does testimony in
presented as history, pass the basic tests of professional scholars
In an attempt to inject a more systematic historical analysis of
ter protection policy into the ongoing discussion, this paper wi
developments in groundwater law during the twentieth century
review several national surveys of state water-pollution laws and
ine legal efforts seeking to protect groundwater. By doing so, it
a historically documented narrative in contrast to the recollectio
by testifying engineers or other practitioners.
Historical Context
A misconception fostered by litigation-inspired history holds t

federal legislation directly addressed groundwater, scientists, in
water managers, and the public in general knew so little about th
for groundwater contamination that legislative action did not a
subject.3 This question is particularly significant today in vario
concerning hazardous waste sites. In particular, suits filed by p
responsible parties against their insurance companies for paym
old general liability policies typically address the historical state
edge about groundwater, groundwater contamination, and gr
protection laws.
Fred Hart, an environmental consultant, suggested that the Sa
ing Water Act (1974) made groundwater part of the "federal re
scheme." Although that act might have been the first federal act
2. Dewling, Report, 13.

3. Groundwater is the portion of water beneath the earth's surface that occurs
geologic formations, both rock and soil. Subsurface and underground waters incl
water, in addition to water flowing in subterranean channels and also water occur
zone of saturation in the soil or soil water.
GROUNDWATER AND THE LAW * 27
term "groundwater," prior pollution legislation (P.L. 845, 1948

the more general category of "underground waters," and EPA of
a responsibility to protect groundwater under previous acts
Greenfield, an assistant administrator with the U.S. Environmen
tion Agency (USEPA), addressed a USEPA-co-sponsored conf
groundwater quality in 1971. He conceded that groundwater
mentioned explicitly in the laws that authorized the USEPA's
agencies, but he claimed that groundwater
did not need to be mentioned specifically. It is implicit in all the w

quality laws carried out by the Federal Pollution Control Administ
and the Federal Water Quality Administration. It is implicit in the v
public health laws under which the old Bureau of Water Hygiene e
lished recommended standards for drinking water and gave tec
assistance to municipal water-supply systems throughout the countr
As evidence that there was concern without explicit reference to

ter, he quoted President Nixon's 1970 address to Congress: "Fo
control purposes, the environment must be perceived as a single,
lated system. . . . The sources of air, water, and land pollution ar
lated and often interchangeable." Greenfield pointed out that bot
and groundwater are parts of the same hydrologic system and th
water quality was a legitimate USEPA concern. The 1971 proce
previous work by the U.S. Public Health Service underscore
concern with groundwater before the mid-1970s, despite the
specific legal reference to the term.
Rather than seek historical evidence to support his claim, Hart
a 1984 report prepared by the Office of Technology Assessment
claimed that "groundwater contamination has historically rec
attention at the national level."6 The quoted passage is found in a
that seeks to establish the nature and extent of the groundwater
The unnamed author(s) cited fifty-four references, most dating
1980s, ten from the 1970s, and only one from the 1960s. T
evidence that this statement is historically informed. No mention
the several bibliographies on groundwater published before that
authors did not cite the numerous U.S. Geological Survey gro
contamination investigations from the first third of this century,
4. Stanley M. Greenfield (U.S. EPA), "EPA's Role in Ground-Water Pro

Proceedings of the National Ground Water Quality Symposium (Denver: U.S. E
Protection Agency, Water Pollution Control Research Series, 16060 GRB 08/71
5. Hart, "Superfund Reauthorization," 26.
6. Office of Technology Assessment, Protecting the Nation's Groundwaterfro
nation (Washington, DC: Office of Technology Assessment, 1984), 20-21.
7. For example, D. K. Todd and D. E. O. McNulty, Polluted Groundwater: A R
Significant Literature (Huntington, NY: Water Information Center, 1974) cont
references with a focus on "relatively recent" literature. They also cite several oth
phies.
28 m THE PUBLIC HISTORIAN
Public Health Service groundwater pollution studies in the 1920s."

theless, subsequent chapters push back the time frame for federal
with groundwater. The report mentions that the 1948 Water P
Control Act addressed underground waters and that the 1969
Environmental Protection Act included provisions that were "dire
evant to groundwater." Specifically, Sections 208, 205(j), and 106 p
funding for monitoring and planning activities dealing with both su
groundwater.9 In a table itemizing "federal statutes relevant to the
tion of groundwater quality," the authors included the Reclamatio
1902 and the Atomic Energy Act of 1954.10 In another table, the O
the Mineral Leasing Act of 1920 and the Materials Act of 1947 as ad
statutes that indirectly pertained to groundwater protection. Furth
Section 102(a) of the Federal Water Pollution Control Act of 1972 ca
the development of programs for "preventing, reducing, or elimin
pollution of the navigable waters and ground waters and improvin
sanitary conditions of surface and underground waters."'' It appears
balance of the OTA report did not support the quoted passage, at
used by Hart.
In another discussion about past knowledge of groundwater con
tion, two engineers presented a narrow statement to convey a much
message. They claim that "it wasn't until the mid- to late-1970s th
problem of groundwater contamination was sufficiently well-reco
that state and federal regulations were passed governing the land d
wastes in landfills."'2 Although this comment may be true strictly in t
federal law concerning landfills, it offers little insight into unders
government's role in protecting groundwater. In the 1940s, the U
Health Service pointed out that sanitary landfills could contr
groundwater pollution and recommended selecting sites where thi
not occur.13 The burden of legislation, however, rested with the
Illinois, the state health department turned to the state geological su
geologic and hydrologic assessments of conditions at proposed landf
during the 1950s. It used this information to steer operators away f
where groundwater contamination was likely. Also in the 1950s, C
established a landfill classification system that restricted the disp
8. Examples of this concern can be found in the U.S. Geological Survey's Wate
Papers and the U.S. Public Health Service's Public Health Reports.
9. OTA, Protecting the Nation s Groundwater, 64-74.
10. Ibid., 66-70.
11. Quoted in Erlece P. G. K. Allen, Ground Water Protection from the Federal
Analysis of the Development and Implementation of the Safe Drinking Water A
lished dissertation, University of Texas at Dallas, 1981.
12. Robert D. Mutch, Jr. and W. Wesley Eckenfelder, Jr., "Out of the Dusty Arch
History of Waste Management Becomes a Critical Issue in Insurance Litigation,"
World 6 (October 1993): 59-68.
13. C. C. Spencer, Recommended Wartime Refuse Disposal Practices (Washin
U.S. Public Health Service, Public Health Reports, Supplement 173, 1943).
GROUNDWATER AND THE LAW 0 29
hazardous materials to geologically secure facilities in an attemp

groundwater pollution.14 States also had groundwater protec
regulations pertaining to well-drilling practices and waste injec
early 1950s. Society, in the form of its state laws and regulatio
groundwater pollution as an illegal action.
A second plank in the ahistorical argument holds that only aft
of the "environmental movement" in 1970 did national concern with
groundwater pollution emerge.'5 Systematic scholarship easily corrects the
misconception. First, the idea that the environmental movement came to
life in 1970 is not supported by historical scholarship. Samuel Hays argued
that the fundamental reorientation of public interest in environmental
issues began after World War II and found clear expression in several
environmental impulses in the 1960s.16 One can trace a federal impulse back
still further. Passage of the Water Pollution Control Act in 1948 gave the
federal government responsibilities to promote pollution control at the state
level, to provide funding to pollution-control research, and to step into
water pollution conflicts when the states did not take sufficient action. The
legislation committed the Surgeon General to "prepare and adopt compre-
hensive programs for eliminating or reducing the pollution of interstate
waters and tributaries thereof and improving the sanitary condition of
surface and underground [emphasis added] waters.""7 The U.S. Public
Health Service, the federal agency assigned to support pollution control
programs, referred to its principal water quality research facility as its
"environmental health center," emphasizing the broader concerns and not
limiting them to surface water. In a review of political concerns, Solecki and
Shelley pointed out that the environment was entering the national political
agenda during the 1950s and had become a significant campaign issue by the
late 1950s. Furthermore, they make the point that during the 1950s, the
environment evolved from a local to a national concern and that much of the
debate centered on who should carry out pollution control responsibili-
ties-not whether there was a need for them.l" Indeed, the overwhelming
14. Frank C. Foley, memo to Illinois State Geological Survey Groundwater Division Files,
June 10, 1952, Champaign, Illinois. California had conducted studies of landfill leachate in the
early 1950s and had instituted its classification system by the mid-1950s. American Public
Works Association, Municipal Refuse Disposal (Chicago, Ill.: American Public Works Associa-
tion, 1961), 120-21.
15. This general point is found in Hart, "Superfund Reauthorization"; Dewling, Report;
and Mutch and Eckenfelder, "Out of the Dusty Archives."
16. Samuel P. Hays, "Three Decades of Environmental Politics: The Historical Context," in
Government and Environmental Politics, ed. Michael J. Lacey (Baltimore: Johns Hopkins
University Press, 1991), 19-80. Others also argue that environmental politics predate the
1940s.
17. An Act to Provide for Water Pollution Control Activities in the Public Health Service of
the Federal Security Agency and in the Federal Works Agency, and for Other Purposes, Public
Law 845, 80th Cong., 2d sess., Ch. 758, 1948.
18. W. D. Solecki and F. M. Shelley, "Pollution, Political Agendas, and Policy Windows:
Environmental Policy on the Eve of Silent Spring," Environment and Planning C 14 (1996):
451-68.
response to Rachel Carson's 1962 work Silent Spring reflecte

whose attention was already directed to environmental matters.
Before 1970, the primary authority for intrastate waters reside
states-not the federal government. During hearings for the 194
act, congress heard testimony that only fifteen states had "gener
sion and control" over pollution.20 The small number of states wit
authority was cause for concern; nonetheless the 1948 act left res
for pollution control in the hands of the states. There was ample e
legislative action on water pollution in the state capitals. A 1948
survey of state pollution laws reported that at least seventeen s
revised their regulations since 1945.21 Within two years, a follow
noted that twenty-nine states had "adopted new legislation, revis
legislation, or modified associated regulations.""2 A 1951 com
state laws commented that
the past decade has seen the growth of widespread public concern ove
increasing pollution of our waterways by municipalities, industry
agriculture. As a result, the Federal Government and the States
increased their legislative activity to the point where industry fin
difficult to keep abreast of the latest local requirements governing w
pollution."
States remained committed to providing the primary level of water pollu-

tion control. Testifying before Congress in 1955, Vinton Bacon, of the
California State Water Pollution Control Board, argued that Senate Bill 890
needed "to recognize, preserve, and protect the primary responsibilities and
rights of the States in controlling water pollution." He protested provisions
that allowed the federal government to sue polluters without state consent.24
National law before the 1970s sought to preserve the state's role while
providing a means for federal intervention in interstate conflicts or prob-
lems that were unresolvable at the local level. Any discussion of pollution
legislation for that time period must be sought at the operative level of
authority-the individual states. Indeed, even after the passage of the more
19. Rachel Carson, Silent Spring (New York: Houghton Mifflin, 1962). Indeed, Carson
analyzed scientific studies completed during the preceding two decades to make her case. She
discussed a groundwater pollution problem that took place a decade before publication of her
work.
20. U.S. Senate, Subcommittee of the Committee on Public Works, Stream Pollution
Control: Hearings, 80th Congress, 1st sess., 1947, 353.
21. A. Anable and R. P. Kite, "Pollution Abatement: Appraisal of Current Regulations,"
Chemical Engineering Progress 44 (January 1948): 3-16.
22. D. F. Othmer, M. D. Weiss, and R. S. Aries, "Water Pollution by Industry: A Survey of
State Legislation and Regulations," Mechanical Engineering 73 (1951): 706-708.
23. M. D. Weiss, Industrial Water Pollution: Survey of Legislation and Regulations (New
York: Chemonics, 1951).
24. U.S. Senate, Committee on Public Works, Hearing on Water and Air Pollution Control,
84th Cong., 1st sess., April 22, 1955, 116-17.
GROUNDWATER AND THE LAW N 31
explicit federal laws in the 1970s, states and local governments r

role of "policy initiators."25
Far from being newly discovered in the 1970s, groundwater
and the need to protect groundwater were well-established conce
public health, sanitary engineering, and industrial communit
developments during the 1940s and 1950s fostered additional atte
this topic. Severe contamination of surface water supplies, caused
war-time industrial activity, along with new pumping technologi
lated expanded use of groundwater supplies. Estimates suggest th
early 1950s, only about 20 percent of drinking water supplies der
groundwater sources--compared to about 50 percent in the m
Numerous groundwater pollution incidents during the 1940s
directed public agency attention to finding and abating the co
sources. These incidents ranged from industrial contaminatio
water supplies to nitrate contamination in rural areas. Jointly, the
surveys of the situation." Urban sprawl brought urban and rural
into close contact, increasing the probability of private well cont
These developments prompted states to expand their definition o
and of the waters they protected.
Historians have approached the subject of groundwater pollutio
an entirely different perspective than expert witnesses. Joel Tarr
the use of different sinks as locales for discarding waste. His exam
urban waste disposal drew on contemporaneous sources to illu
reliance on land sinks for sewage in the mid-nineteenth century
municipalities shifted to water sinks when the volume of sew
whelmed the land. He found publications in the 1950s and 1
addressed the topic, but concluded that professional concern w
during that time frame. Nonetheless, when professional organiza
fered guidelines on landfill operation in the 1950s and 1960s, the
tently recognized the problems of leachate and groundwater
although Tarr pointed out that refinements in practice await
25. J. L. Regens and M. A. Reams, "State Strategies for Groundwater Qu

Science Quarterly 69 (1988): 53-69.
26. David E. Burmaster, "The History and Extent of the Groundwater Pollutio
in Groundwater Pollution: Environmental and Legal Problems, C. C. Travis and
eds. (Boulder: Westview, 1984), 45-62.
27. Task Group E4-C, "Control of Underground Waste Disposal," Journal
Water Works Association 44 (1952): 685-89; Task Group E4-C, "Findings and Re
tions on Underground Waste Disposal," Journal, American Water Works A
(1953): 1295-97; Task Group 2450 R, "Underground Waste Disposal and Contr
American Water Works Association 49 (1957): 1334-42; William E. Stanley and R
Status of Knowledge of Ground Water Contaminants (Washington, DC: Fed
Administration, Technical Studies Program, 1961); and Morris Deutsch, Gr
Contamination and Legal Controls in Michigan (Washington, DC: U.S. Geolog
Water Supply Paper 1691, 1963).
research." In terms of hazardous wastes, Tarr has discussed the

concern of waste management professionals from sewage to so
Again relying on contemporaneous literature, he found little p
concern with groundwater contamination before 1945, altho
knowledged that attention to bacterial and brine wastes existed
war period. He also concluded that by 1970, many states had re
requiring field investigations of groundwater location and addr
siting of new municipal and industrial landfills.29 Others have
developments in the field of groundwater hydrology, industrial
groundwater pollution, and legal remedies to groundwate
throughout the twentieth century. When developments in these
are traced forward from the turn of the century, it is apparent
sionals were aware of the processes that produced contamin
1920s and that industry was well acquainted with this knowled
1950s.30 The work of historical professionals seeks to reassemble
from the contemporaneous literature and trace developmen
rather than drawing on a few ahistorical reports to conclude t
absence of 1990s technology and science, there was little compre
groundwater processes.
Legal Authority before 1945
In an early review of legal principles pertaining to undergroun

Douglas Johnson of the U.S. Geological Survey (USGS) conclu
the fact that a man has absolute right to the underground waters wit
territory, and may abstract those waters entirely, even to the po
draining his neighbor's land, does not give him the right to poison
those waters and allow them to pass into his neighbor's land in
condition.3
Furthermore, Johnson pointed out that the courts had held a gas company
liable for damaging a neighbor's well. The legal authority existed not just to
28. Joel A. Tarr, "The Search for the Ultimate Sink: Urban Air, Land, and Water Pollution
in Historical Perspective," Records of the Columbia Historical Society of Washington, DC 51
(1984): 1-29.
29. Joel A. Tarr, "Historical Perspectives on Hazardous Wastes in the United States," Waste
Management and Research 3 (1985): 95-102. In a recent volume reprinting some of his
important works, Tarr acknowledged subsequent scholarship on state regulation of industrial
wastes and groundwater pollution that might modify his discussions on the topic. See Joel A.
Tarr, The Search for the Ultimate Sink: Urban Pollution in Historical Perspectice (Akron:
University of Akron Press, 1996), 336-37.
30. Craig E. Colten, "A Historical Perspective on Industrial Wastes and Groundwater
Contamination," Geographical Review 81 (April 1991): 215-28.
31. Douglas W. Johnson, Relation of the Law to Underground Waters (Washington, DC:
U.S. Geological Survey, Water-Supply and Irrigation Paper 122, 1905), 25.
L DeChano 1997 o Reference to Spring,

Source: Goodell. 1905. Well or Groundwater
FIGURE 1
Pollution Laws Protecting Spring, Wells, or Ground Water, 19

(Source: Goodell, 1905)
affix liability, but to prevent pollution as well. Johnson mentioned

cases where, with mere indications that damage would occur, the
issued injunctions against damaging actions. In one case, a "perp
injunction" was granted to prevent the passage of "unclean refuse" f
pit to a neighboring property.32 Within the discussion of subterran
underground waters, the legal system included concern with per
water (groundwater and soil water) and underground streams. As loc
where humans obtained groundwater, springs and wells were typical
focal points of cases involving underground water.2
Another USGS report inventoried water pollution laws in 1905
viewing these state statutes for the same terms mentioned in "subte
waters" lawsuits, thirty-one of forty-eight states specified protectio
wells, springs, or groundwater (Fig. 1).35 Several other laws pro
polluting a water supply without specifying surface or subsurface w
32. Ibid., 26.

33. Henry Budd, "The Law of Subterranean Waters," The American Law Register 3
1891): 237--64 and Johnson, Relation of Law.
34. Edwin B. Goodell, A Review of Laws Forbidding Pollution of Inland Water
United States, 2d. (Washington, DC: U.S. Geological Survey, Water-Supply and I
Paper 152, 1905).
35. Percolating waters, according to court decisions, included the waters trib
springs and wells. See, David G. Thompson and Albert G. Fiedler, "Some Problems R
to Legal Control of Use of Ground Waters," Journal, American Water Works Asso
(1938): 1059.
Quite frequently, the state laws prohibited willful poisoning or de

wells, springs, or other types of water bodies such as streams or
Statutes even prohibited the operation of a cemetery within a sp
distance of a public water supply." Public health regulations at the
regulated the distance between wells and privies.37 Thus, pub
addressed groundwater at the level of common law, statutory
agency regulation by the first decade of the century.
By the 1930s, hydrologists were criticizing the legal defin
groundwater for not incorporating current scientific understan
drologists complained that the legal classification of subterranean
percolating waters, and artesian waters was an artificial distincti
argued that "such an elaborate classification of ground water
justified or necessary. All water in the part of the earth known as t
saturation is purely and simply ground water, moving according t
well recognized laws of physics."3" The principal argument of hyd
was that groundwater flow was not "irregular or unknowable," n
subject to "secret and incomprehensible influence." Rather, they
"the physical laws governing the movements of ground wate
established, and relatively simple engineering investigations will d
the direction of ground-water motion, and geological observa
determine the type of occurrence."39 Hydrologists pointed out th
tion between water supply and water quality in their critique
principles. In 1940, Treadwell and his colleagues argued that
classification of groundwater fostered inconsistent rulings on cont
problems. They maintained that although it was necessary to know
water hydrology to allocate supplies properly, they claimed that "
more important ... to prevent the loss of that ground-water body
contamination.'"40 Treadwell and his colleagues argued that conta
could be long lasting and that it had the potential to destroy the
groundwater throughout the course of the contaminated flow. On
the 1940s, the concept of groundwater contamination was deeply i
in common law and was the subject of intense discussion among gr
ter specialists.
State action to protect groundwater can be found from coast t
New Jersey authorities reported that they had been regulating gro
36. Goodell, Review of Laws.

37. Even though local health departments mandated minimum distances betw
and privies in some locations, some public health officials thought such require
insufficient. See William P. Mason, Water-Supply (New York: John Wiley & Sons, 1
14.
38. Thompson and Fiedler, "Some Problems," 1049-91.

39. C. F. Tolman and Amy C. Stipp, "Analysis of Legal Concepts of Subflow and Percolating
Waters," American Society of Civil Engineers, Proceedings 65, no. 11 (December 1939): 1697.
40. Edward F. Treadwell, O. E. Meinzer, M. R. Lewis, and B. F. Snow, "Analysis of Legal
Concepts of Subflow and Percolating Waters," American Society of Civil Engineers, Proceed-
ings 66, no. 5 (May 1940): 1020-30, esp. 1028-29.
resources since 1910, but only in 1937 did the legislature pass the
that specifically provided groundwater with protection from cont
The long-time chief engineer of New Jersey water policy not
incidents where groundwater supplies had been ruined in New Je
with other states. With increasing demands for groundwater
initiated a series of groundwater studies in the 1920s and by
operated field stations for sampling groundwater quality and leve
on the state's study of groundwater supplies and the identi
potential contamination problems, manufacturers cooperated with
and drilled new wells that minimized the diversion of salt water
aquifers.42
In the 1940s, California officials and knowledgeable practitioners, largely
in response to groundwater pollution incidents, discussed the need for
legislation pertaining directly to groundwater. One commentator found
only two specific references to groundwater ("underground" water) in
existing state pollution laws nationwide-Pennsylvania and Washington.
He suggested blending the two to create a definition broad enough to
include groundwater-both used the term underground water(s).43 Byron
Doll, a California municipal engineer, argued that existing laws only allowed
agencies to take action after a problem was detected. Given the importance
of groundwater for domestic supplies and for industrial development, and
the fact that Californians "lived on the roof of our reservoir," Doll and others
argued for legislation to protect groundwater.44 The logical solution, as they
saw it at the time, was to treat groundwater as surface water, and apply the
same protections to both. The public forum on California's situation was
part of a growing national discussion on the need to offer groundwater equal
protection.
Postwar Legislative Actions
California was one of the leaders in developing a comprehensive ground-

water protection program. A legislative fact-finding committee headed by
41. H. T. Critchlow, "Policies and Problems Controlling Ground Water Resources,"

Journal, American Water Works Association 40 (1948): 775-83.
42. Henry C. Barksdale, et al., Ground-Water Supplies of Middlesex County, New Jersey
(Trenton: New Jersey State Water Policy Commission, 1943).
43. R. F. Goudey, "Developing Standards for the Protection of Ground Water," Journal,
American Water Works Association 39 (1947): 1010-20. The two states he cited were
Pennsylvania and Washington. The Pennsylvania law included "surface and underground
water" as part of the "waters of the commonwealth" and in Washington the state had
jurisdiction over "surface and underground waters." Both laws he mentioned were in place by
1945.
44. Byron Doll, "Formulating Legislation to Protect Ground Water from Pollution,"
Journal, American Water Works Association 39 (1947): 1003-1009, and A. P. Black, "Basic
Concepts in Ground Water Law,"Journal, American Water Works Association 39 (1947): 989-
1002.
36 a THE PUBLIC HISTORIAN
Randal Dickey received a charge from the legislature in 1949 to

analyze procedures to prevent the pollution of "underground wat
"surface streams," and "the principal river systems" of the
mandate explicitly equated surface and subsurface waters.45 Ind
subsequent legislation provided a means for the state t
groundwaters as well as surface waters. The Dickey Act (194
"waters of the state" to include "any waters, surface or und
including saline waters, within the boundaries of the state."46 It
regional water boards that had the authority to prescribe requir
pertaining to any pollution or nuisance condition, either existing
ened. The ability to take action prior to pollution addressed
expressed by water authorities in earlier years and reflected the
that groundwater processes were sufficiently understood to fore
tion events.
The 1949 water code also authorized the state to make regular investiga-
tions of the state's waters. This led to a formal definition of groundwater
basins and areas of groundwater storage by 1952. In the next few years, a
regular groundwater monitoring program began, with the objectives of
identifying baseline groundwater quality information, detecting changes in
groundwater quality, and delimiting areas affected by water quality
changes.47
New York's postwar pollution legislation followed a different course, but
adopted a clearly defined water classification system. The 1950 New York
classification system set water quality standards for the "best use" of various
surface and subsurface waters. For example, for Class A surface waters,
those used for drinking, cooking, and food processing, the standards prohib-
ited all toxic liquids, limited phenols to concentrations no greater than 5
parts per billion (ppb), and excluded sewage. For waters with less critical
uses, the standards did not prohibit sewage or phenols. The classification
system included two groups of underground waters: GA (used for drinking,
cooking and food processing) and GB (source of industrial or other non-
drinking, cooking, or food processing). For both classes, the regulations
prohibited the introduction of toxic substances in harmful quantities.48
In 1949 Michigan joined the group of states that explicitly had included
underground waters in their pollution statutes. Amendments to the state's
1929 Stream Control Commission Act changed the commission's name to
the "Water Resources Commission" and broadened its responsibilities to
"protect and conserve the water resources of the state and shall have control
45. Interim Fact-Finding Committee, Report on the Interim Fact-Finding Committee on

Water Pollution (Sacramento: Assembly of the State of California, 1949).
46. An Act to Add Division 7 to the Water Code, Chapter 1549, Statutes of California, 1949.
47. Sheryl Luzzadder-Beach, "Geographic Sampling Strategies for Groundwater Quality"
(Ph.D. dissertation, University of Minnesota, 1990), 155-58.
48. California State Water Pollution Control Board, Water Quality Criteria (Sacramento:
California State Water Pollution Control Board, 1952), 423-31.
GROUNDWATER AND THE LAW a 37
Pollution
Mineral Extraction
SDamages From
L DeC-.o 19M Well Registration

Souxce MCGnus. 1951
FIGURE 2
Provisions Protecting Groundwater, 1951. Combined symbols in

multiple provisions. (Source: McGinnis, 1951)
of the pollution of surface or (and) underground waters." Shortl

receiving this authority, the state took action against several metal-
firms in Bronson, Michigan, that were suspected of introducing toxic
to local groundwater resources. Not only did the law include sub
waters in its language, but the state took action based on that wordi
The U.S. Geological Survey compiled a survey of state laws pertain
groundwater in 1951 that provides some insight into the level of co
the time. The focus of the USGS survey was with water supply
pollution. The author stated that "the closely related subjects of poll
and flood control, navigation, etc., are generally outside the fiel
Geological Survey, and will be mentioned only incidentally." Althoug
survey did not seek to document legal controls for protecting groun
quality, the subject appears in the synopses of state laws. As part of st
to conserve groundwaters, the report specifically mentioned pollutio
tection in only ten states, but noted that there were penalties for d
groundwater via extractive activities in an additional five states (Fig
ten states, laws required some form of water well registration with
authorities, reflecting a interest in protecting well water. Other sta
as Michigan, California, and Pennsylvania whose laws specificall
tioned groundwater contamination did not appear in this survey, un
49. Nicholas V. Olds, "Legal Aspects of Ground Water Contamination," Proceedin

Seventh Industrial Waste Conference, 1952, 244-68.
ing its shortcomings.50 Despite obvious omissions in terms of gro

quality, the report inadvertently indicated that most eastern state
some protection for groundwater supplies.
The Council of State Governments, in response to the 194
legislation, developed a recommended state water pollution contr
1951. In their discussion of the legislation, they noted that the sug
"follows the more recent statutes by authorizing the agency to
comprehensive program to deal with the problem in all [emphas
waters of the State."' "All" included subsurface water.
Additional measures of concern with groundwater can be foun
appeals courts records and state agency files. A review of th
Decennial Index of appeals cases, under the category of subt
waters, identified eighteen states where groundwater pollution c
to the state appeals courts (Fig. 3)." The majority were in the hu
but as might be expected, California appeared as well. Higher po
densities and higher groundwater tables are likely factors that pro
concentration of groundwater litigation in the east. In response to
survey carried out by the American Water Works Association, pu
officials from twenty-five states reported incidents where "chemi
trial" wastes had caused groundwater contamination by 1957 (Fig
survey also included categories for sewage, oil and gas, and other
contaminants. Only five states responded that they had no grou
contamination events.53 The reported incidents, both through t
and from pollution control agencies, indicated that government b
concerned with groundwater situations and responded when com
came to their attention. The actual number certainly must be larg
3 only shows the appeals cases, and not all local cases, and Figure 4
states with reported incidents, with no reference to the frequency
States such as Michigan had numerous examples by the mid-1
example, a U.S. Geological Survey study of Michigan discus
incidents associated with metal-plating wastes and four result
phenolic wastes.`
50. C. L. McGuinness, Water Law With Special Reference to Ground Water (W

DC: U.S. Geological Survey, Circular 117, 1951).
51. Council of State Governments, "Statement on State Water Pollution Cont
tion," in Suggested State Legislation (Holmes Beach, FL: W. W. Gaunt & Sons, 1
edition), 67-71.
52. Decennial Edition of The American Digest (St. Paul, MN: West's Publis
1929, 1938, 1949, and 1958). Each volume has a section on "Water and Waterco
within that is a subsection with cases dealing with "subterranean and percolatin
inventoried all pollution cases in that subdivision. No interstate cases were listed,
have elicited federal intervention as was the case with surface waters.
53. Task Group 2450-R, "Underground Waste Disposal and Control," Journal
Water Works Association 49 (1957): 1334-42.
54. Morris Deutsch, Ground-Water Contamination and Legal Controls in
(Washington, DC: U.S. Geological Survey Water-Supply Paper 1691, 1963).
L. DeChano, 1998 Appeals Cases
Source: West's Decennial Index, Heard
1906-1956.
FIGURE 3
Reported Appellate Cases Relating to Subterranean Waters,

1956. (Source: West's Decennial Index, 1922-1956)
50 ISO wChemical,
L. DeChano, 1998 Industrial
Source: AWWA 1957 Contamination
FIGURE 4
Reported Groundwater Contamination Incidents, 1957. (Source

Group 2450-C, AWWA, 1957)
Underground.
Subsurface.
Groundwater
or Wells
oAny/All Waters
"u -. of the State
Restricted to
Surface Water
L DeChano 1998
Sour~ MCA 1959 No Data
FIGURE 5
State Water Protection Laws, 1959. (Source: MCA, 1959)
In 1959, the Manufacturing Chemists' Association, a trade assoc

compiled a volume summarizing state water-pollution laws for distri
to members of the association to "aid in water pollution contr
author, an employee of a major chemical company, sought to assemb
"so-called working laws and regulations as they are now being en
The state summaries typically contain the law's definition of polluti
do not indicate how states defined "waters of the state."" When class
the state laws that pertained to groundwater, I mapped those that m
reference to underground, subsurface, or ground waters, or well
used in either scientific or legal discussions.
By 1959, water pollution laws in at least eighteen states (Fig. 5) in
wording that specifically addressed "underground, subsurface, or gr
water." Ironically, this is fewer than the thirty-one states that e
protection to "springs, wells, or groundwater" in 1905 (Fig. 1). The dif
terminology did not mean diminished concern. Rather, the postwar
tion sought to provide broader protections, and many state legi
simply used the terms "any" or "all" waters of the state (Fig. 5)-in a
with the Council of State Government's recommended wording. Whe
55. Manufacturing Chemists' Association, Water Pollution Abatement Manual:

dium of Water Pollution Laws (Washington, DC: Manufacturing Chemists' Associatio
GROUNDWATER AND THE LAW E 41
number that specifically addressed groundwaters and those t

general term are combined, thirty-seven states showed an intere
tecting subsurface waters, whereas only six states explicitly limite
laws to surface water (Fig. 5). The notion that "any" and "a
included the subsurface is supported by contemporaneous res
1960 survey carried out by prominent MIT sanitary engineers. W
public health officials were asked if their states had regulations p
groundwater contamination, respondents pointed out that th
protecting "all public waters" (Connecticut) and "all sources
(Massachusetts) applied to groundwater.56
Changing definitions of pollution also demonstrate a broade
public policy. Nuisance law seldom specified what effects c
pollution, and state laws that defined nuisance or pollution aroun
of the century stated, for example, that carcasses or other "noisom
could not be placed in wells or springs. Although some states had
particular types of industrial wastes as nuisances during the early
century, the trend was toward more general definitions by mid-
Even New York's 1950 law that put specific limits on some
prohibited "toxic" material from protected waters without attem
itemize or identify all toxic substances. Thus, the laws did not lim
tion to certain chemicals or offensive substances, but opened enf
to any contaminant that satisfied the definition of pollution. Ac
the MCA survey published in 1959, most states defined pollution
detrimental to humans or animals or involving other uses of the w
as industrial, agricultural, and recreational (Fig. 6). A few states st
pollution on a case by case basis, and others reported no definiti
definition of pollution was most pronounced in the Mississippi R
with a sizable western outlier. States with longstanding groundw
cerns such as New Jersey, Michigan, and California typically
employ the broad definition of pollution. Generally, states with
tion had low population densities and little industry.
Although the MCA survey does not include the definitions of
the state," the fact that so many states offered protection to un
waters demonstrates that a concern existed by 1959. States
legislative action, and under the prevailing federal position that
primary authority in water pollution matters, this is where one
to seek legal authority, not in the federal statutes.
A final measure of state concern with groundwater contam
found in the survey conducted by the MIT researchers in 1
investigators sent letters to all state sanitary engineers and requ
of "any regulations or guidance memorandum on ground water c
56. William E. Stanley and Rolf Eliassen, Status of Knowledge of Ground Wa

nants (Washington, DC: Federal Housing Administration, Technical Studies Pro
S Human or Aninmal
Life or Othe Uses
..0 tooy"0
CaseByC*s
L DeChwe~m g1
Souce MCA 19W No Defniton
FIGURE 6
State Definitions of Pollution, 1959. (Source: MCA, 1959)
tion." Most but not all states replied, and many indicated that
regulations provided some protection for groundwater (Fig. 7). In fa
number of states with groundwater laws or regulations is under-repre
by the MIT survey. Several officials from states with laws that s
underground waters in 1959 neglected to mention those statutes. Ov
the national picture constructed by the MIT researchers reflects ext
regulatory concern at the state level by 1960. By their tabulation, th
states reported regulations pertaining to groundwater contami
Based merely on this imperfect inventory, concern with groundwater
tion was national in scope.
Conclusions
Although the personal observations of retired or senior practitioners are

important in understanding the development of pollution control legislation
in this country, their methods and conclusions must undergo the same
scrutiny we apply to other historical accounts. Assertions that there was no
federal concern with groundwater pollution before the mid-1970s skirts the
historical issues and evidence.
Federal authorities, both in the U.S. Geological Survey and the Public
Health Service, carried out investigations of groundwater pollution during
* Affirmative
Negative, but
- laws by 1959
Negative
L DeChano 1998
Source Stanley & Eliassen. 1961 No reponse
FIGURE 7
State Responses to Inquiry Concerning Groundwater Regulation
(Source: Stanley and Eliassen, 1961)
the first half of the century and reported on their findings to a natio
audience. During this time, pollution-control responsibilities rested
state authorities, who took advantage of the USGS and USPHS repo
developing their policies. Many states had laws that prohibited pois
wells or springs, and common law offered remedies for groundwater p
tion. State public health authorities placed restrictions on the proximi
waste disposal sites and water wells, required registration of wells
generally sought to protect groundwater along with surface water.
During the 1940s, the discussion about protecting groundwater
panded due to increased surface water pollution and expanding u
groundwater for domestic and industrial uses. State authorities called f
and got legislative protection for groundwater. This led to further stud
groundwater contamination and also enforcement action by state offic
during the 1950s. By the 1950s, most states offered some form of groun
ter protection--either in general provisions that protected "any" or
waters of the state, or in more specific legislative reference to undergr
waters. The extensive rewriting of state pollution laws following Worl
II included groundwater as a matter of legal concern.
It is possible to argue that despite the extensive effort to pro
groundwaters, state laws were ineffective. To some extent this is true, a
part it underscores the impetus for passage of federal laws during the 1
It is important, however, to keep the historical situation in

proportion of potable water taken from groundwater sources was
20 percent in the early 1950s. The greater number of public
enforcement actions dealing with surface water reflected use
Undoubtedly there was a massive struggle to clean up surface w
this overshadowed the real efforts to combat groundwater pollu
most state laws relied on public complaints and not a systematic m
program. When they encountered groundwater pollution, local o
could close the wells and consider their job done. Responsive
attracted little national attention, although in the 1940s authori
calling for preventative efforts. Finally, as hydrologists argued in
legal principles lagged behind science, and it took many year
judicial decisions in line with the science of groundwater hydrolo

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Groundwater and the Law: Records v.

Statements offered in current environmental litigation often make the

1. Examples of this viewpoint appear in Fred C. Hart, "Superfund Reauthorization: It's

The Public Historian, Vol. 20, No. 2 (Spring 1998)

legislation. More importantly at the state level, common law allo

A misconception fostered by litigation-inspired history holds t

2. Dewling, Report, 13.

term "groundwater," prior pollution legislation (P.L. 845, 1948

did not need to be mentioned specifically. It is implicit in all the w

As evidence that there was concern without explicit reference to

4. Stanley M. Greenfield (U.S. EPA), "EPA's Role in Ground-Water Pro

Public Health Service groundwater pollution studies in the 1920s."

hazardous materials to geologically secure facilities in an attemp

response to Rachel Carson's 1962 work Silent Spring reflecte

States remained committed to providing the primary level of water pollu-

explicit federal laws in the 1970s, states and local governments r

25. J. L. Regens and M. A. Reams, "State Strategies for Groundwater Qu

research." In terms of hazardous wastes, Tarr has discussed the

Legal Authority before 1945

In an early review of legal principles pertaining to undergroun

L DeChano 1997 o Reference to Spring,

Pollution Laws Protecting Spring, Wells, or Ground Water, 19

affix liability, but to prevent pollution as well. Johnson mentioned

32. Ibid., 26.

Quite frequently, the state laws prohibited willful poisoning or de

36. Goodell, Review of Laws.

38. Thompson and Fiedler, "Some Problems," 1049-91.

Postwar Legislative Actions

California was one of the leaders in developing a comprehensive ground-

41. H. T. Critchlow, "Policies and Problems Controlling Ground Water Resources,"

Randal Dickey received a charge from the legislature in 1949 to

45. Interim Fact-Finding Committee, Report on the Interim Fact-Finding Committee on

L DeC-.o 19M Well Registration

Provisions Protecting Groundwater, 1951. Combined symbols in

of the pollution of surface or (and) underground waters." Shortl

49. Nicholas V. Olds, "Legal Aspects of Ground Water Contamination," Proceedin

ing its shortcomings.50 Despite obvious omissions in terms of gro

50. C. L. McGuinness, Water Law With Special Reference to Ground Water (W

Reported Appellate Cases Relating to Subterranean Waters,

Reported Groundwater Contamination Incidents, 1957. (Source

In 1959, the Manufacturing Chemists' Association, a trade assoc

55. Manufacturing Chemists' Association, Water Pollution Abatement Manual:

number that specifically addressed groundwaters and those t

56. William E. Stanley and Rolf Eliassen, Status of Knowledge of Ground Wa

Although the personal observations of retired or senior practitioners are

It is important, however, to keep the historical situation in

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