Race and Water in the Boom and Bust Years

The origin and development of our nation’s urban water systems began at the close of the eighteenth century.  At that time, following the Revolutionary War, America was largely rural.  In 1790, less than four percent of the nation’s population lived in cities.  But the country was on the cusp of change.  By the early nineteenth century, the United States was transformed into a “network of commerce,” largely due to improvements in transportation, like canals and railroads, and inventions like the telegraph. These advancements sparked massive industrial development and significant population increases in urban centers nationwide.

The origin and development of our nation’s urban water systems began at the close of the eighteenth century.  At that time, following the Revolutionary War, America was largely rural.  In 1790, less than four percent of the nation’s population lived in cities.  But the country was on the cusp of change.  By the early nineteenth century, the United States was transformed into a “network of commerce,” largely due to improvements in transportation, like canals and railroads, and inventions like the telegraph. These advancements sparked massive industrial development and significant population increases in urban centers nationwide.


Between 1790 and 1870, American cities vastly expanded in size, as both rural dwellers and European immigrants moved to urban areas.  New York’s population rose from 700,000 to 3 million.  Chicago grew from a small town to a city of 1.7 million.  The populations of Baltimore, Philadelphia, and Boston also significantly increased during this period. During the nineteenth century, the population of the United States grew from 5.3 million to 76 million, and by 1900, 40 percent of the nation’s population was urban.


These cities were filthy.  People dumped garbage and waste into the streets.  Runoff from trades like soapmaking and leather tanning polluted the ground and slaughterhouses emitted noxious fumes into the air.   Animals roamed freely, leaving their wastes when they lived and their carcasses when they died.  Philadelphia, Boston, and New York City, among other cities, were covered in dirt with little sanitary infrastructure.


Epidemic disease was rampant.  Throughout the eighteenth and nineteenth centuries, thousands across the nation died from cholera, typhoid, and yellow fever, including in New York, Chicago, New Orleans, St. Louis, and other cities.   In 1793, yellow fever killed ten percent of the population of Philadelphia and continued to revisit the city in following years.  Waves of cholera hit  New York City in 1832, 1849, and 1866. In 1878, one out of every eight Memphis residents died from yellow fever.  By 1900, nearly half of all deaths in the United States were due to infectious disease, and waterborne disease accounted for nearly a quarter of reported infectious disease deaths in major cities.


 Until the mid-nineteenth century, scientists believed that epidemic disease was transmitted by polluted air, known as the “miasma” theory. Environmental elements such as garbage, excrement, and poor ventilation were assumed to be sources of miasmas.  Dirty water was also understood to be a contributing factor in releasing miasmatic poisons into the air.  While the miasma theory was incorrect—bacteria cause disease, not filth—efforts to avoid waste and polluted water had some positive health impacts.   For example, some cities made sanitation improvements in the mid-nineteenth century to remove pollutants from the air, based on recommendations from Edwin Chadwick, a British social reformer. Other cities, like Boston, Philadelphia, and New York, began looking for clean water supplies because of the association between yellow fever and filth.  In 1848, the miasma theory was debunked by a London physician, John Snow, who linked epidemic disease to polluted water, although decades passed before his theory was accepted into the mainstream.



Eventually, and as exhaustively detailed by environmental historians like Dr. Martin Melosi and Dr. Carl Zimring and environmental engineers like Dr. David Sedlak, among others, cities began to prioritize the creation of large-scale waterworks systems to help eradicate disease and fight fires.  Before then, the supply of water had largely been an individual endeavor: people relied on wells and pumps, the collection of rainwater in cisterns, or nearby natural water sources for water supplies and used privy vaults and cesspools for human and household waste. Obtaining water was physically demanding, and women bore the brunt of the labor: according to one calculation, in 1886, a typical housewife carried water eight to 10 times a day and walked 148 miles carrying water over the course of a year.  These rudimentary, and private, water systems were not sustainable; they were not large enough to serve growing urban populations and were often contaminated.  Cities needed a systematic way to provide clean water to their growing populations. 



Still, waterworks systems developed slowly in the U.S.  While the nation’s first municipal water system was built in Philadelphia in 1801 by Benjamin Latrobe, other cities did not immediately follow this lead.  (In fact, Philadelphia had only 70 customers the first year, far below Mr. Latrobe’s estimation of 4,000, and citizens were offered free water for several years to promote the system.)  By the mid-1800s, only about half of the nation’s major cities—mostly located in the Northeast—had large-scale water delivery systems.  Among others, New York’s Croton Aqueduct was built in 1842, and Boston’s water system from Lake Cochituate was completed in 1848.  But many cities, particularly those in the South, lacked the infrastructure in the mid-nineteenth century to construct a major waterworks or sanitation system.



Increased residential segregation heightened racial inequities in the provision of municipal services like water and sewer.  In the Kerner Commission’s 1968 report, examining the causes of race riots throughout the U.S., municipal inadequacies were cited as a major grievance by Black communities. In 1967, LDF pioneered an effort to require cities to equalize these services by filing a lawsuit on behalf of a group of Black families living in Shaw, Mississippi.


The lead plaintiff in Hawkins v. Shaw, Andrew Hawkins, was a Black carpenter living with his wife and children in the “Promised Land,” one of Shaw’s oldest and largest Black neighborhoods. Shaw was a poor town: it did not have a public water system until the 1930s, did not begin paving roads until 1960, did not have sanitary sewers until 1963, and had no system for surface water drainage until 1970. 


By the late 1960s, Shaw was completely segregated into a white side, which had comfortable municipal amenities (despite the town’s general poverty), and a Black side, which lacked water mains, fire hydrants, and sanitary sewers, and where the streets were unpaved and unlit.While only 30 percent of Shaw’s population was white, 97 percent of the residents of the neighborhoods that lacked services were Black.


Only 80 percent of homes on the Black side had access to sanitary sewers, while virtually all of white homes had access. Unlike the Black neighborhoods, Shaw’s white neighborhoods had underground storm sewers. Smaller water mains had been installed in Black homes, resulting in much lower water pressure as compared to homes in the white neighborhoods. Like many of his neighbors, Mr. Hawkins’s home had no indoor plumbing. According to Charles Haar and Daniel Fessler, two law professors who filed an amicus brief in Shaw (and later wrote a book about the case), the idea to raise a constitutional challenge to a municipality’s inequitable provision of public services arose out of LDF’s Jackson, Mississippi office.


 LDF lawyers believed that they could logically extend the successful battle to desegregate schools and public facilities to challenge discriminatory living conditions under the 14th Amendment to the U.S. Constitution.  Success was far from likely—as Professors Haar and Fessler described it, issues of sovereign immunity and standing would have dissuaded “all but the most ill-informed (or innovative) lawyers from attempting a municipal services equalization suit in 1960 . . . the prospect of representing the destitute residents of the worst part of town would have tempted few lawyers even if ultimate legal victory had been far more likely.”  (Ill-informed comment aside, this statement still accurately reflects LDF’s hard-working lawyers today.)


LDF filed Mr. Hawkins’s class action complaint in the Northern District of Mississippi, alleging that the town violated the 14th Amendment by failing to provide municipal services in Shaw’s Black neighborhoods that were equal to those provided in white neighborhoods. Of particular note, the complaint alleged that Shaw had discriminated not only on the basis of race, but poverty as well: the inclusion of wealth discrimination was intended to mirror language from Supreme Court Justice Warren in McDonald v. Board of Election Commissioners of Chicago, where he cautioned that strict scrutiny of a governmental policy is “especially warranted where lines are drawn on the basis of wealth or race.”   


Following an evidentiary hearing, the district court dismissed LDF’s complaint, rejecting the existence of a constitutional right to equal municipal services. The court took great pains to justify the inadequate services in Shaw’s Black neighborhoods, noting that they could be explained by “substantial, rational considerations” like a static population and financial factors.  For example, according to the court, the lack of sanitary sewers in certain areas was not the result of racial discrimination but a consequence of improper housing codes. 


The court further patronized the plaintiffs by advising them to exercise their right to vote if they wanted relief: as “Negro citizens have voting power approximately equal to that of white citizens,” any “problems” with unequal services “are to be resolved at the ballot box.” 


LDF appealed to the Fifth Circuit Court of Appeals.  In its appeal, LDF dropped the poverty claim, focusing instead on the need for application of strict judicial scrutiny of Shaw’s actions because the service disparities were based on race.  In January 1971, the Fifth Circuit reversed the district court’s ruling, finding that the town had violated the constitutional guarantee of equal protection. Importantly, the three-judge panel began its opinion by stating:


Referring to a portion of town or a segment of society as being ‘on the other side of the tracks’ has for too long been a familiar expression to most Americans.  Such a phrase immediately conjures up an area characterized by poor housing, overcrowded conditions and, in short, overall deterioration.  While there may be many reasons why such areas exist in nearly all of our cities, one reason that cannot be accepted is the discriminatory provision of municipal services based on race. 


The Fifth Circuit engaged in a careful review of the disparities in the Black and white sides of Shaw in street paving, street lights, sanitary sewers, surface water drainage, and water mains, and determined that they could not be justified by any compelling state interests.  The court also noted that there was no evidence of intent to discriminate by Shaw or its officials, but held that the law was “clear” that no evidence of intent was required in a civil rights lawsuit alleging racial discrimination. To remedy the racial disparities in municipal services, the court ordered Shaw to submit a plan for its approval. 


Unsurprisingly, Shaw petitioned the Fifth Circuit for rehearing en banc.  The full appellate court upheld the panel decision, agreeing that proof of intentional discrimination was not required and that the facts “squarely and certainly” supported the inference of clear overtones of racial discrimination in the provision of municipal services in Shaw.  It also determined that the panel’s directive to the town to submit a plan to remedy the racial discrimination was a “sound approach.” 

Following the decision, Shaw expanded access to public services in town.  By 2004 (when Dr. Troesken revisited the case), 97.5 percent of homes in the town had sewer access and 100 percent had access to the water system. 


The Shaw decision was predicted to have significant consequences nationwide.  LDF’s press release following the en banc decision noted that “the message is now clear to cities and towns across the South and hopefully throughout the nation; that the federal courts will no longer tolerate any inequality in the provision of municipal services to Black and minority group citizens.”   In an editorial published in The New York Times in 1971, a writer reflected that the decision “throws open a broad new field of civil rights law” for the “many Shaws in America, North and South, in city ghettos and rural slums alike.”


Another commentator wrote in the Harvard Civil Rights-Civil Liberties Law Review that “by providing the first precedent for invalidating varying patterns of municipal services,” the case would become “the progenitor of cases attacking the unequal provision of services.”

Prior to the construction of its Baltimore’s water system, city residents obtained water from streams, ponds, springs, and wells.   In the late eighteenth century, the Baltimore City Council explored the possibility of constructing a waterworks system after several bouts of yellow fever hit the city and as a means of fire protection. In 1787, the Maryland Legislative Assembly authorized the Baltimore Insurance Company to supply the city with water. However, for years, the city was hampered in its attempts to construct a waterworks due to various property rights issues and shaky municipal finances.


By the early nineteenth century, Baltimore, like other cities, assumed a role as a provider of public goods for its residents.  In 1803, Mayor Calhoun (the city’s first mayor) insisted that something be done about the lack of a water system.[vi]  In 1804, the Federal Gazette published a water proposal from “A Citizen of Baltimore,” recommending that the city contract with a privately-owned company to develop a waterworks, drawing its supply from Jones Falls.  Based on this proposal, the Baltimore Water Company (BWC) was formed that year, constructing a system that provided moderate fire protection and water for domestic supply. In 1820, Baltimore became the second city (after Philadelphia) to convert to cast-iron mains and lead service pipes as an alternative to wooden pipes, which were not durable and often leaked. 


Between 1810 and 1830, Baltimore’s population more than doubled to just over 80,000 residents, including 14,000 free Black people (almost four times the number of slaves in the city). Despite this population growth, BWC excluded many parts of the city from service, extending its lines only to areas where residents were able to pay.  As of 1825, a mere 1,640 households in the city were customers of the waterworks.  Other residents continued to use neighborhood pumps for water, although the majority of this supply was contaminated. 


Between 1830 and 1850, the city’s population doubled again to nearly 170,000, largely due to European immigration. While BWC expanded its service, it was inadequate to serve the city’s increased population.  In 1835, Baltimore’s mayor noted the insufficient water supply to the town’s fire plugs, stating that the “want of an abundant supply of water has upon some occasions rendered the invaluable services of our Fire Companies less effectual that they otherwise have been.”  Throughout the 1830s and 1840s, residents objected to BWC’s failure to provide service to outlying areas and poorer districts. By 1849, only half of the city’s populated areas had water service.


Eventually, the private reign of the Baltimore Water Company came to an end.  In 1852 (a year after Baltimore City became independent of Baltimore County), the city concluded that “the supply of city water should not be left in the hands of a private company, no matter how excellent its management, but the water supply should be in charge of and subject to the control of the city government.”[xviii]  In 1853, the Maryland General Assembly authorized the city to acquire and operate a potable water supply system. The city finally acquired the Baltimore Water Works the following year for $1.35 million; the water system was the city’s first public utility.


At the time that Baltimore acquired its waterworks, the system spanned 50 miles. The city’s residents were impatient for an expansion of service—1,300 signed a petition complaining about “the long delay on the part of the city authorities to obey the people of Baltimore to introduce an additional supply of Water into the city.”  After creating a water board charged with the management and maintenance of the waterworks, the city was able to expand the system to 127 miles of service by 1860. In 1881, the city built a new system to increase its water supply—and by the time it was completed, Baltimore’s supply totaled 150 million gallons a day, equal to the supply of New York and Philadelphia combined.


The city further expanded its waterworks throughout the early twentieth century.  In 1910, Baltimore began chlorinating its water due to public health concerns.


While Baltimore was one of the first major cities in the U.S. to construct a waterworks, it was slow to implement a sewer system and accordingly became known as the “city of open drains,” apparently to the “disgust . . . of the average American citizen.” The city employed various techniques to delay construction of a public sewer system.  In the mid-nineteenth century, Baltimore utilized “night men” who traveled the city at night, emptying privy vaults and depositing them outside the city.  In the 1870s, the city hired a private company to pump privy contents through a hose into an airtight tank, a more sanitary and healthy process than that used by the night men. Despite these efforts, foul odors from the harbor, rivers, and streams, in which waste was directly discharged, affected every part of the city.


By the early twentieth century, Baltimore was the nation’s largest city without a sewer system. The city’s leadership, many of whom had lucrative business interests in the pumping company, repeatedly refused to construct a system between 1859 and 1905.  In 1905, Baltimore finally approved plans for a sewer system, in part to compete with other cities for economic development.  Four years later, in 1909, less than two percent of Baltimore households were connected to the public sewer, although virtually all were connected by 1922.


In 1978, Baltimore’s waterworks became self-sustaining through an amendment to the city’s charter. And in 2018, Baltimore became the first major city in the nation to permanently ban the privatization of its water system.