Opposition Brief — Wisconsin v. Illinois

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IC Sut Rane GOUT, U.S.

~- ;— D

“EB C1958

sae RRC Jeri T. FRY, Clerk

Supreme Court of the United “States

Octoser Term, 1957.

at -

STATES OF WISCONSIN, MINNESOTA, OHIO and PENN-

SYLVANIA, Complainants,

STATE OF ILLINOIS and THE METROPOLITAN SANITARY

DISTRICT OF GREATER CHICAGO, Defendants,

No. 2 Original.

ST4TE OF MICHIGAN, Complairant,

STATE OF ILLINOIS and THE METROPOLITAN SANITARY

DISTRICT OF GREATER CHICAGO, et al, Defendants,

STATES OF MISSOURI, KENTUCKY, TENNESSEE, LOUISI-

ANA, MISSISSIPPI and ARKANSAS, Intervening Defendants,

No. 3 Original.

STATE OF NEW YOuk, Complainant,

vs.

STATE OF ILLINOIS and THE METROPOLITAN SANITARY

DISTRICT OF GREATER CHICAGO, et al, Defendants,

No. 4 Original.

BRIEF IN OPPOSITION TO THE MOTION OF THE

STATE OF NEW YORK AND TO THE APPLICATION

OF THE STATES OF WISCONSIN, MINNESOTA,

OHIO, PENNSYLVANIA, MICHIGAN, AND NEW

YORK.

WiuiaM C. Wines, LatHaM Caste,

Assistant Attorney General, Attorney General,

State of Illinois, State of. Illinois,

LAWRENCE J, FENLON, RussE.t W. Roor,

Principal Assistant Attorney, Attorney, The Metropolitan

The Metropolitan Sanitary Sanitary District of Greater

District of Greater Chicago, Chicago,

JcsEPH B. FLEMING, JoserH H. PLECK AND THomAs M. THOMAS,

of KIRKLAND, FLemMine, Green, Martin & ELuIs,

Attorneg™ for the Defendants.

THE GUNTHORP-WARRER PRINTING COMPANY, ONICAGD EB ts,

7 ae Ses cee Senne ome

LNCAP ERE 5 Sot ME ree we, S ekiceinema aca 1) OTSA Cry aes aot Le ed

Introductory Statement ............................

iia

I. The Right to Discharge Domestic Pumpage Into

the Drainage Canal Was Expressly Upheld in

the 1930 Decision, and the Issue Raised in the

Motion and Application Is Not Witkin the

Framework of Matters Left Open for Consid-

IN oo areeet eset icad A ohinttics ey

Congress Has Authorized the Discharge of

Domestic Pumpage Into the Canal for the Illi-

WOME WMO oss vreis ss Hide io

Assumed Population Growth Is Not Ground For

the Relief Asked and, On the Basis of Experi-

ence, Will Result in an Insubstantial Increase

in Domestic Pumpage and an Insignificant Re-

duction in Lake Levels............... Faas

The Application Is Predicated On the Errone-

ous Assumption that Recent Studies Have

Established a Diversion of 1500 c.f.s. Without

Domestic Pumpage to Be Adequate for Naviga-

tion in the Illinois WOROON oC

Waterpower and Seaway Projects Authorized

After 1930 Afford No Grounds for Abrogating

the Provisions of the 1930 Decree and the

Rivers and Harbors Act of 1930 Authorizing

the Withdrawal of Water for Domestic Pump-

age for Navigation Purposes in the Illinois

WN eis iview ee

VI. The Experience of Smaller Communities Which

Have No Choice But to Return Water Used for

Domestic Pampage to Its Source Does Not Fur- +

nish a Standard for the Defendants to Follow.. 29 |

VII. Complainants’ Request for a Declaration by

This Court Affecting Contemplated Congres-

sional Action Should Not Be Granted........ 30

APPENDIX.

Sketch of Illinois Weenie ris he 35

Copy of H. R. 2, 85th Gemgrets.<../................ 37

History of Previous Bills in mers. a. 39

Report of House Committee, 84th Congress on H. R.

MO est eS VEO Cee. | 41

| Summary of Annual Average Pumpuage and Diversion

from Lake Michigan, 1930-1956............... nee ae

ah a HE

EE COOL EE Un Soe

TaBLE oF AUTHORITIES.

Cases Cited.

| Arizona v. California, 283 U. S. 423............. 18, 23, 29

Chrysler Corporation v. United States, 316 U.S. 556.. 6

Donaldsop, Postmaster General v. Read Magazines,

Inc., 3 3 MA. <3 9 eek Re esa aman 6

First Iowa Coop. v. Power Commission, 328 U. 8S. 152 18

Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1............ 16

New Jersey v. New York, 283 U.S. 336.............. 29

North Dakoia v. Minnesota, me UU. & 200... 23

Oklahoma v. Guy BF. Atkinson Co., 313 U. S. 508...... 18

Sanquinetti v. United States, 264 U. S. 146.......... 16

Sanitary District v. United States, 266 U.S. 405...... 18

U. S. Gypsum Co. v. National Gypsum Co., 352 U. §

OF. bua Sivek ia sewue eae he kee 6

United States v. Appalachian Electric Power Co., 311

Te - ape hsm @ Walaa raid aa ae cS cee 18

United States v. Commodore Park, Inc., 324 U. §

SS ie hewitit de Leas et aCe na toe oa 16, 18

United States v. Swift & Co., 286 U. S. 106.......... 6

United States v. Twi? City Power Co., 350 U. S$. 222.. 18

United States v. Willow River (o., 324 U. S. 499... 18

Wisconsin v. Illinois, 278 U. S. 367............. 3, 7, 14, 18

Wisconsin v. Illinois, 281 U. S. 179. .2, 3, 4, 11, 12, 18, 28, 31

Wisconsin v. Illinois, 289 U. S. 395.............. i lange: a

Wisconsin v. Illinois, 352 U. 8. 945 oasis DEN W hai wie 13, 20n

Wisconsin v. Illinois, 352 U. S. 988.................. 13

“4

Statutes and Treaties Cited.

Constitution of the United States, Article I, Section 8.. 16

Canadian Boundary Waters Treaty of 1909 (36 Stat.

Ee er ee ee ee ee te 28

Treaty of Niagara, 1950 (T1AS 2130)............... 28

Rivers and Harbors Act of July 3, 1930 (c. 847, 46

WE bs vent dhe cs ink vaceacs 5, 14, 15, 19, 25, 28, 32

Special Master’s Rests

Special Master ’s Report, Wisconsin v. Illinois, No. 7,

Original, October Term 1927, under order of cS ie,

ence, filed November 23, 1927... .3, 8, 17, 18, 19, 25, 28, 29

Special Master’s Report, Wisconsin v. Illinois, No. 7,

Original, October Term 1927, under order of refer-

ence, filed December 17, 1929........ 3, 8, 9, 14, 23, 25, 30

Other Authorities.

Civil Engineering, November 1955.................. 32

Hearings Subcommittee of Senate Committee on Pub-

lic Works on H. R. 3210, S. 1172, S. 2250, 84 Cong.

Pee Mn CUNO Sak 0 0d esclk . eas, 2, 3, 32

House Document 184, 73rd Congress, 2nd Session....

Seed wd Genin G CANS od 0-0 KALE 9 a0 1c chile ak owe 15, 21, 25, 32

Report by the Division Engineer, North Central Divi-

sion Corps of Engineers, U. S. Army, rica

1957

IN THE

Supreme Court of the United States

Ocrosrer TERM, 1957.

§TATES OF WISCONSIN, MINNESOTA, OHIO and PENN-

SYLVANIA, Complainants,

vs.

STATE OF ILLINOIS and THE METROPOLITAN SANITARY

DISTRICT OF GREATER CHICAGO, Defendants,

: No. 2 Original. ©

STATE OF MICHIGAN, Complainant,

vs.

1 STATE OF ILLINOIS and THE METROPOLITAN SANITARY

DISTRICT OF GREATER CHICAGO, et al., Defendants,

STATES OF MISSOURI, KENTUCKY, TENNESSEE, LOUISI.

| ANA, MISSISSIPPI and ARKANSAS, Intervening Defendants,

No. 3 Original. |

: ‘

| STATE OF NEW YORK, Complainant,

vs.

STATE OF ILLINOIS and THE METROPOLITAN SANITARY

DISTRICT OF GREATER CHICAGO, et al, Defendants,

No. 4 Original.

Se ee a eee ae

BRIEF IN OPPOSITION TO THE MOTION OF THE

STATE OF NEW YORK AND TO THE APPLICATION

OF THE STATES OF WISCONSIN, MINNESOTA,

OHIO, PENNSYLVANIA, MICHIGAN, AND NEW

YORK.

To the Honorable the Chief Justice and the Associate Jus-

tices of the Supreme Court of the United States:

The State of Illinois and The Metropolitan Sanitary

District of Greater Chicago submit that the motion of the

—— ~ -~ _ ~ meee palin bela aS OO Ble ee ey AE a OTR

State of New York for a modification of the decree of

April 21, 1930 and the application filed by the States of

Wisconsin, Minnesota, Ohio, Pennsylvania, Michigan, and

New York, for a reopening and amendment of the decree

so as to require the return to Lake Michigan of the water

taken therefrom as domestic pumpage, or, in the alter-

native, for the appointment of and reference to a Special

Master, should be denied. The facts set forth in the motion

and application, together with indisputable facts of yeublie

reeord, show that no ground exists for a modification,

reopening, or amendment of the decree or for other relief.

INTRODUCTOBY STATEMENT.

On April 21, 1930, this Court entered a decree in these

causes which enjoined the defendants on and after Decem-

ber 31, 1938 from diverting any of the waters from the

Great Lakes-St. Lawrence System or watershed through

the Sanitary and Ship Caual, known as the Drainage Canal,

in excess of an annual average of 1500 c.f.s. (cubic feet

per second) in addition to domestic pumpage. (Wisconsin

v. Illinois, 281 U. 8. 179, 201 (1930).)

To carry out the provisions of the decree, The Metro-

politan Sanitary District of Greater Chicago (formerly

the Sanitary District of Chicago) has completed construe-

tion of vast sewage treatment projects, consisting of sewage

treatment plants, intercepting sewers, and sewage pumping

stations, at a cost of $316,935,000. (Hearings, Subcom-

mittee of Senate Committee on*Public Works on H. R.

3210, S. 1772, S. 2250, 24th Cong. Second Sess. pp. 18-19.)

Paragraph 4 of the decree provides (Wisconsin v. I llinois,

281 U. 8. 179, 201 (1930)):

That the provisions of this decree as to the divert-

ing of the waters of the Great Lakes-St. Lawrence

system or watershed relate to the flow diverted ty the

defendants exclusive of the water drawn by the City

of Chicago for domestic water supply purposes and

entering the Chicago River and its branehes or the

Calumet River or the Chicago Drainage Canal as

sewage. The amount so diverted is to be determined

by deducting from the total flow at Lockport the amount

of water pumped by the City of Chicago into its water

mains and as so computed will include the run-off

of the Chicago and Calumet drainage area.

Water taken by the City of Chicago, and other munici-

palities in the drainage district,,for domestic and sanitary

purposes, and turned into the canal after treatment through

sewers operated by the Sanitary District, is known as

‘“‘domestic pumpage.’’ (Report of Special Master Charles

E. Hughes, filed November 23, 1927, p. 75; Report of Special

Master Charles E, Hughes on Re-Reference, filed Decem-

ber 17, 1929, pp. 91, 120, 143; Wisconsin v. Illinois, 281 U. S.

179, 199 (1930).) Domestic pumpage includes water used

by the inhabitants for drinking, cooking, washing, sanita-

tion and other household uses, fire fighting, and industrial

uses.

The Drainage Canal, which reversed the flow of the Chi-

cago River so that it flowed away from Lake Michigan

instead of into the Lake, was opened in 1900. (Master’s

1927 Report, 18; Wisconsin v. Illinois, 278 U. S. 367, 403.)

The cost of the Drainage Canal was approximately $82,-

000,000. (Hearings, Subcommittee of Senate Committee on

Public Works on H. R. 3210, S. 1172, S. 2250, 84th Cong.

2nd Sess. 18, (1956).)

Between 1910 and 1923, intercepting sewers were con-

structed, at a cost of $109,021,613, to discharge the sewage

from the area into the Chicago River instead of Lake

Michigan. (Master’s 1927 Report 20-21; Wisconstn v. Ilii-

nois, 278 U. S. 367, 404 (1929).)

The complainants, in the motion and application now

on file, do not challenge the diversion of 1500 ¢.f.s. or the

<4 e

reversal of the flow of the Chicago River. (Appli:ation IX,

17, Argument, 38.) But they attack that part of tue decree

of April 21, 1930 which authorizes the discharge of-water

used for domestic pumpage into the Chicago giver and

thence into the Drainage Canal, instead of Lake Michigan,

The motion and the application differ ii: their-allegations

and in their prayers for relief, but-they are/alike in their

demand that the defendants discontinue discharging domes-

tic pumpage, #. e., any of the treated effluents emanating

from the Sanitary District sewage treatment facilities, into

the Drainage Canal. They demand that such treated

sewage effluent be dumped into Lake Michigan, the source

of Chicago’s water supply.

The effect would be not only to risk the pollution of the

water on Chicago’s lake front and of Chicago’s water sup-

ply, complete purification of sewage effluent not being

presently possible, but to compel the Sanitary District and

the City of Chicago to rearrange its sewage facilities and

construct new works and tunnels at tremendous cost. Re-

gardless of cost and inconvenience to the defendants, and

regardless of the threatened pollution of the lake, the com-

plainants, after long acquiescence in the present program,

now ask the Court to make a revolutionary change in #he

decree and order the defendants to undo portions of vast

and costly projects undertaken and completed both before

the 1930 decree and thereafter in compliance with its terms.

(Application p. 36.)

In paragraph 7 of the decree (281 U. S. 179, 202), this

Court retained jurisdiction of the suits for the purpose of

any order or direction, or modification of the decree, or any

supplemental decree, which it might deem at any time to be

proper in relation t@the subject matter in controversy.

At the time the decree of April 21, 1930 was entered,

Congress had not legislated on the subject of the diversion

and this Court in its 1930 opinion (281 U. S. at pp. 198-199)

stated that its action a1.J all action of the parties) would

‘be subject, of course, to any order that Congress may

make in pursuance of its coastitutional powers and any

modification that necessity may show should be made by.

this Court.’’ ‘

A short time after the decree was entered, Coygress, on

July 3, 1930, passed the Rivers and Harbors Act (c. 847, 46

Stat. 929) which expressly authorized for navigation pur-

poses of the Illinois Waterway the withdrawal by the

defendants of water from Lake Michigan, including -water

for domestic pumpage, which was allowed by the decree

of April 21, 1930. This affirmativé action by Congress is

now in full force and effect.

The defendants contend that the pending motion and

application are fatally defective and should be denied and

dismissed on the grounds that they do not present a mat-

ter of which the Court can take judicial cognizance for the

following reasons: .

(1) In retaining jurisdiction of the ‘‘subject matter

in controversy’’, this Court did not intend to invite a

rehearing of issues of law or fact which were adjudi-

cated in ts 1930 decision; the right of the defendants

to withdraw water from Lake Michigan for domestic

purposes and discharge the effluent into the Chicago

River and the Drainage Canal was finally adjudicated

by the 1930 opinion. |

(2) Neither the motion nor the application present

material facts which were not before the Court in 1930.

The population growth was projected with reasonable

accuracy in the hearings before the Special Master in

1929. The amount of water withdrawn from Lake

Michigan for domestic pumpage is substantially the

same today as it was in 1930 when the decree was

entered. No changed conditions or c’rcumstances un-

foreseen in 1930 are presented by the complainants

which warrant a reopening, amendment, or modifica-

6 /

tion of the decree, or the appointment of a Special

Master.

(3) The amount of water now being withdrawn

from Lake Michigan by the defendants, including

domestic pumpage, has been authorized by Congress _

for the Illinois Waterway. This Congressional ac-

tion, to which complainants do not refer, authorizes

the discharge of domestic pumpage into the Drain.

age Canal, as a part of the Lakes to the Gulf water-

way, for navigation purposes pursuant to its para-

mount power over navigable water of the United

States.

Because the foregoing points can be established by the

record as it now stands, and by public records of which

this Court may take judicial notice, no purpose will be

served by referring these causes to a Master.

A decree in which jurisdiction is retained should not be

modified without a showing of changed conditions or the _

springing up of unforeseen circumstances, or a showing _

that the modification would effectuate the basic purpose of |

the decree. (United States v. Swift & Co., 286 U. S. 106

(1932) ; Chrysler Corporation v. United States, 316 U.S.

596 (1942) ; Donaldson, Postmaster General v. Read Maga-

zmes, Inc., 333 U. S. 178, 184 (1948) ; U. 8. Gypsum Co. v.

National Gypsum Co., 352 U. 8. 457, 463, 464, 474 (1957).)

The motion and application have not met that burden.

In sapport of the reasons above set forth for denial of the

pending motion and application, the defendants respect-

fully submit the following argument.

~J)

ARGUMENT.

The Right to Discharge Domestic Pumpage Into the Drain-

age Canal Was Expressly Upheld in the 1930 Decision,

and the Issue Paised in the Motion and Application Is

Not Within the Framework of Matters Left Open for

Consideration.

New York’s motion asserts (p. 3):

The original complaints in these actions did not

demand ths‘ the water taken from Lake Michigan as

domestic pumpage be returned to the Lake. This

Coart, therefore, rejected the demands which com-

plainants made upon the argument for such return.

Significantly, the application now filed by all the orig-

inal complainants, including the State of New York, does

not contain a similar representation concerning the reason

for the rejection. The fact is that such demands were not

rejected because of a failure to include them in the original

bilis of complaint.

Referring to the prayers in the bills of complaint in

the original suits, Mr. Chief Justice Taft said (278 U. S.

367, 399, 400) :

These are amended bills by the States vf Wisconsin,

Minnesota, Michigan, Ohio, Pennsylvania and New

York, praying for an injunction against the State of

Illinois and the Sanitary~District of Chicago from

continuing to withdraw 8,500 cubic feet of water a

second from Lake Michigan at Chicago.

* * * The bills prayed that the defendants be en-

joined from permanently diverting water from Lake

Michigan or from dumping or draining sewage into

its waterways which would render them unsanitary

— ; ae, eepemmnemmerasaestememnens eect

» 8

or obsiruct the people of the complainant States in

navigating them.

The Special Master in his 1927 Report summarized the

prayers of the amended bills of complaint of the States of

Minuesoia, Ohio, and Pennsylvania, filed ‘October 9d, 1925,

as follows (p. 7):

The amended bill seeks an injunction restraining the

defendants from causing any water to be taken from

Lake Michigan, in such manner as permanently to

divert the same from the lake. There is a further

prayer that, if the Sanitary and Ship Canal shall be

used as a navigable waterway of the United States

and be subject to the same control on the part of the

United States as other navigable waterways, the de-

fendants shall be restrained against permanently di-

verting arly water from Lake Michigan in excess of

the amount, which the Court shal] determine to he

reasonably required for navigation in and through said

canal and the connecting waters to the Illinois and

Mississippi Rivers, without injury to the navigable

capacity of the Great Lakes and their connecting

waters. It is also prayed that the defendants be re-

strained from dumping or draining into the Sanitary |

District. Canal any sewage or waste in such quantity

and manner as excessively to pollute and render the

canal, the Chicago, Des Plaines and Illinois Rivers.

unsanitary and injurious to the people of the com-

plainant States navigating said waterways.

The State of Michigan in its bill of complaint, filed in

this Court on March 8, 1926 and the State of New York

in its bill filed October 22, 1926 prayed for the same relief.

(Master’s 1927 Report, 9.)

In discussing the demands of the complainants, at the

hearings, as distinguished from the prayers of the bills of

complaint, the Special Master in his 1929 Report after

thorough consideration made all-important findings and

reached certain conclusions which the State of New York

fails to include in Appendix A of its motion. Movant’s

Appendix A purports to contain the pertinent portions of

the Special Master’s Report, but the following findings on

domestic pumpage, at pages 120-122, are omitted:

Pumpage. The complainants ask that all flow at

Lockport be enjoined from the date fixed for the com-

pletion of the sewage treatment works. This would

mean not only the entire cessation of the diversion by

the Sanitary District, in the sense in which that term

is used by the. War Department, but also the termina-

tion of the discharge at Lockport of the pnmpage, that

is, of the water taken by the City of Chicago from

Lake Michigan and entering the Chicago River and the

Drainage Canal as sewage.

So far as this pumpage is concerned, the question

is merely incidental to that relating to the diversion

by the Sanitary District. These bills were brought to

restrain the abstraction of water from Lake Michigan

by the Sanitary District, not to challenge the right of

the City of Chicago to take water from the Lake for

its water supply. Nor can the bills be regarded as

presenting a cause of action based on the charge that

the City of Chicago was taking more water from the

Lake for appropriate domestic uses than it wag en-

titled to take. The City of Chicago was not made a

party to these suits, its entry as a party has been

successfully resisted by the complainants, and what-

ever may be the effect of the proceedings against the

State of Illinois, as the responsible creator and gover-

nor of the municipal corporation, that State has not

been called upon to answer on the theory that the

mere taking of water by the city for the ordinary uses

_ of its inhabitants constituted an actionable wrong. In

its opinion, this Court described these bills as brought

. ‘for an injunttion against the State of Illinois and

the Sanitary District of Chicago from continuing to

withdraw 8,500 cubic feet of water a second from Lake~

Michigan at Chicago’’ (278 U. S. 367, 399). This

amount of 8,500 c.f.s. is the diversion by the Sanitary

District allowed by the permit of March 3, 1925,

exclusive of pumpage.

. 10

Furthermore, it is not regarded as open to serions--

question that the City of Chicago,-under authority of

the State, has the riparian right to take water from

Lake Michigan for the ordinary uses of its inhabitants,

That would not be, per se, an unreasonable use. And

if it were sought to prevent an abuse of tuat right

through the taking of an unreasonable amount, it

would be necessary to present that issue in an appro-

. priate manner. (City of Canton v. Shock, 66 Ohio

State, 19; Minneapolis Mill Co. v. Board etc. of St.

Paul, 56 Minn. 485; City of Philadelphia v. Collins,

68 Pa. 106; City of Auburn v. Union Water Power Co.,

9C Maine, 576; Barre Water Co. v. Carnes, 65 Vt. 626;

Fisk v. Hartford, 70 Conn. 720.)

If the City of Chicago is entitled to take its water

supply from Lake Michigan for the ordinary ard

reasonable uses of its inhabitants, it cannot be said

that the State or the City is subject to any established

rule of law which requires it to turn into the Lake

what is no longer water but sewage or the effluent of

sewage treatment plants. If there were a way of

destroying the sewage or sewage effluent altogether,

or evaporating it, it does not appear that the State or

the City would violate any right of the complainants |

in doing so (Fisk v. Hartford, 69 Conn. 375). The

question in these suits concerns the diversion by the

Sanitary District and not the pympage independently

considered.

But, as there is no means known at present of other-

wise disposing of the effluent from the sewage treat-

ment plants, when the sewage disposal program has

been fully carried out, it is assumed that the effluent

must be turned into the Drainage Canal and Chicago

River, thence to be discharged at Lockport, the western

terminus of the Canal, or be carried into Lake Michi-

gan. The question of the disposition of the effluent

from the sewage treatment plants thus demands con-

sideration in connection with the award of relief as

to the diversion by the Sanitary District.

The Master thus decided (1) that the prayers of the

bills of complaint, as distinguished from the demands

made by the vomplainants at the hearings, did not chal-

lenge the right of the City to take water from the Lake;

(2) that the City has a right to take water from the Lake

for the ordinary uses of its inhabitants; (3) that neither

the State nor the City is required by law to return sewage

effluent to the Lake; (4) that if it were sought to prevent

an abuse of the right to the water through the taking of

an unreasonable amount, it would be necessary to present

that issue in ‘‘an appropriate manner’’; and (5) that the

‘question of the disposition of the effluent from domestic

pumpage after treatment had to be disposed of.

This Court in its 1930 decision, reported. in 281 U. 8.

179, adopted the Master’s conclusions and went two steps

further. Its decision did not turn on the point, as stated

in the New York motion, that the return of domestic pump-

age to the Lake was not demanded ithe bills of complaint.

Rather, the Court held squarely (1) that the demands of

the complainants were excessive upon the facts in the

case, and (2) that the demands should not be pressed

‘‘without regard to relative suffering and the time during

which the complainants have let the defendants go on

without complaint.’’ These holdings are contained in the

following salient portion of the Court’s opinion (281 U. S.

179, 199), immediately preceding the excerpt quoted at

pages 3 and 4 in the motion of the State of New York:

The complainants demand that this diversion cease,

and the canal be closed at Lockport, with an incidental

return of the Chicago River to its original course.

They also argue that what is called the domestic pump-

age after being purified in the sewage works be re-

turned to the Lake. These demands seem to us ex-

cessive upon the facts in this case. The Master reports

that the best way of preventing the pollution of navi-

gable waters is to permit an outflow from the Drain-

age Canal at Lockport, and that the interests of

navigation in the Chicago River as a part of the port

of Chicago will require the diversion of an annual

average of from 1,000 c.f.s. to 1,500 ¢.f.s. in addition

to domestic pumpage after the Sewage treatment pro-

gram has been carried out. The canal was opened

at the beginning of the century, thirty years ago. In

1900, it already was a subject of litigation in this

Court. The amount of water ultimately to be with.

drawn unless Congress may prescribe a different

measure is relatively small. We think that upon the

principles stated in Missouri y. Illindis, 200 U. §.

496, 520, et seq., the claims of the complainants should

not be pressed to a logical extreme without regard

to relative suffering and the time during which the

complainants have let the defendants go on without

complaint. (Emphasis added.)

The foregoing statement from this Court’s opinion, tof

which the State of New York does not refer, shows con-

clusively that, the Court fully considered and rejected

the contention, now being reasserted, that all water used

for omestic pumpage should be returned to Lake

Michigan.

If protracted acquiescence Oy the complainants in the

Sanitary District sewage disposal system consti:uted a

bar to their demand in 1929 and 1930 that the effluent

. from all domestic pumpage should be returned to the

Lake, such acquiescence is even more clearly a bar today.

Earlier in the opinion the Court had said, at page 199,

that its action would be subject to any modification that

“‘necessity may show should be made.” And in the por-

tion of the opinion quoted in the New York motion (pp.

3-4) the Court said, ‘‘If the amount withdrawn should be

excessive, it will be open to complaint”’; also, that ‘‘whether

the right for domestic use extends to great industrial plants

within the District has not been argued but may be open

to consideration at some future time.’? (Italics supplied.)

The matters left open to “‘complaint’’ and ‘‘considera-

tign at some future time’’ are thus clearly defined, but

“defendants submit that the right to ‘‘domestic pumpage’”’

for ordinary use and the discharge of the effluent into the

canal, is settled by the opinion and decree of this Court.

Examples of ‘‘necessity’’ that may be shown and acted

upon appear in the orders of this Court entered on Decem-

ber 17, 1956 and January 28, 1957. In the first order,

‘additional diversion was allowed for 45 days, until Jan-

uary 31, 1657 ‘‘in view of the emergency in navigation

caused by low water in the Mississippi River.’’ (Wiscon-

sin v. Illinois, 352 U. S. 945.) The second order extended

the period for additional diversion not to exceed an aver-

age of 8,500 c.f.s., for the same reason, to and including

February 28, 1957. Wisconsin v. Illinois, 352 U. 8. 983.

But the relief sought in the motion and application

now on file extends far beyond the modification or sup-

plementation contemplated by the decree of 1930. The

complainants do not charge an abuse of the defendants’

,igut to domestic pumpage nor do they ask for a consid-

eration of the right as applied to ‘‘great industrial plants,”’

separate and apart from pumpage for ‘‘domestic’’ pur-

poses. Instead they seek a cessation of all domestic pumip-

age which is not returned to the Lake, contrary to the

vasic purpose and intent of the decree and the final de-

termination on thigy phase of the suits as contained in

paragraphs 1, 2, 3 and 4 of the decree of 1930.

Of significance, also, is the fact that the Special Mas-

ter’s recommendation that provision should be made for

‘further examinatidn,’’ referred to in paragraph 8 of the

motion, relates only to the amount of ‘‘diversion’’ al-

lowed—not to domestic pumpage. (Appendix A, Motion

pp. 17-18.) The term ‘‘diversion’’ as used by the Special

Master and by the Court in its final opinion and devree

does not include domestic pumpage which is allowed in ad-

dition to the direct diversion. (Appendix A, Motion p. 16,

pars. 10, 11; p. 21, par. 11.)

Defendants therefore respectfully submit that the is-

sue raised in the motion and the application, is not within

the parview of those matters not finally resolved by this

Court in 1930. Rather, the right of the defendants to

withdraw water for domestic purposes and discharge the

effluent into the Drainage Canal has been litigated and

finally decided and should not be relitigated 28 years after

that decision.

Il.

Congress Has Authorized the Discharge of Domestic Pump.

age Into the Canal for the Illinois Waterway.

Contrary to the statement in paragraph V of the appli-

cation (p. 11), the amount of withdrawal allowed by the

1930 decree of this Court pertained only to the navigation

needs of the Chicago River as a part of the Port of Chi-

cago and did not pertain to the Illinois Waterway. (278

U. S. 367, 418; Master’s 1929 Report, 126.)

But the Congress, shortly after the entry of the 1930

decree, passed the Rivers and Harbors Act of J uly 3, 1930

(c. 847, 46 Stat. 929) which deals with the waterway. The

Act expressly authorizes, by reference to the 1930 de-

cree, the withdrawal of 1500 c.f.s., in addition to domestic

punipage, for navigation purposes of the through Illinois

Waterway. The pertinent portion of the Act is as follows:

Illinois River, Illinois, in accordance with the re-

port of the Chief of Engineers, submitted in Sen-

ate Document Numbered 126, Seventy-first Congress,

second session, and subject to the conditions set forth

in his report in said document, but the said project

shall be so constructed as to require the smallest

flow of water with which said, projeet can be prac-

tically accomplished, in the development—of a com-

mercially useful waterway: Provided, That there is

hereby authorized to be appropriated for this project

a sum not to exceed $7,500,000: Provided further,

That the water authorized at Lockport, Illinois, by

the decree of the Supreme Court of the United States,

rendered April 21, 1930, and reported im volume 281,

United States Reports, in Cases Numbered 7, 11, and

12 Original—October te:m, 1929, of Wisconsin and

others against Illinois, and others, and Michigan

against Illinois and others, and New York against Illi-

nois and others, according to the opinion of the court

in the cases reported as Wisconsim agaist Illinois,

in volume 281, United States, page 179, is hereby au-

thorized to be used for the navigation of said water-

way; Provided further, That as soon as practicable

after the Illinois waterway shall have been completed

in accordance with this Act, the Secretary of War

shall cause a study of the amount of water that will

be required as an annual average flow to meet the

needs of a commercially useful waterway as defined

in said Senate document, and shall, on or before Jan-

uary 31, 1938, report to the Congress the results of

such, study with his recommepdations as to the mini-

mum amount of such flow that wil! be required an-

nually to meet the needs of such waterway and that

will not substantially injure the existing navigation

on the Great Lakes “to the end that Congress maytake

such action as it may deem advisable. (Italics sup-

plied.) *

In Wisconsin v. Illinois, 289 U. S. 395, 403-404 (1933),

the Court held that by this Act the Congress took no ac-

tion which affected the operation of the 1930 decree. Nev-

_ ertheless, the Court recognized that the Congress had au-

thorized for the Illinois Waterway the withdrawal per-

mitted by the decree for the Port of Chicago..

The Rivers and Harbors Act of 1930 was the culmina-

tion of a series of Acts which made the Illinois Water-

way from the Port of Chicago to Grafton, Illinois, a fed-

eral navigation project. When completed with federal

funds, the waterway was opened for navigation on March

1, 1933. (House Document 184, 73rd Cong. 2nd Sess.,

pp. 3, 35,39.)

16 r

A sketch of the Illinois Waterway is included as Ap-

pendix A in the appendix attached for the convenience

of the Court.

Because no study had been made of the annual average

flow required to meet the needs of the Illinois Waterway,

as distinguished from the Chicago River as a part of the

Port of Chicago, Congress in the Rivers and Harbors Act

of 1930, above quoted, authorized a study to be made to

determine the amount of w.ter required. In the mean.

time, pending the study to be made, Congress authorized

the withdrawal of water from Lake Michigan allowed by

the decree in these causes entered on April 23, 1930, and

this authorization is now in force.

The Constitution of the United States provides that ‘‘the

, Congress shall have power * * * to regulate commerce

with foreign nations and among the several States * * *.”

{Article I, See. 8, el. 3.) Gibbons v. Ogden, 22 U. S. (9

Wheat.) 1, 196, 197 (1824), held that the power of Con-

gress, then, comprehends navigation within the limits of

every State in the union; se far as that navigation may

be, in any manner, connected with commerce among the

several States; that the power of Congress is complete

in itself and may be exercised to the utmost extent,

and acknowledges no limitations other than are pre-

scribed in the Constitution. Such a limitation is found

in the Fifth Amendment, that private prceperty shall

not be taken for public use without just compensation,

but the limitation is not infringed unless there has, been

an ‘‘actual, permanent invasion of the land, amounting

to an appropriation of and not merely an injury to ‘the

property.”’ (Sanguinetti +. United States, 264 U. S. 146,

149-) Riparian owners have no ground for complaint

by reason of actual but incidental damage sustained,

because their ownership is subject to the servitude of the

exercise of governmental power. (United States v. Com-

modore Park, Inc., 324 U. S. 386 (1945), and authorities

cited in the 1927 Report of the Special Master in these

causes, p. 151.)

The Special Master, in rejecting the contention of the

complainants, in the hearings before him, that it is beyond

the power of Congress to authorize the transfer of water

of ‘Lake Michigan from the Great Lakes-St. Lawrence

watershed to the Mississippi watershed, said (1927 Re-

“port, 153) : :

The power to control navigation, comprehended with-

in that. commerce, is a national power, and for the

purposes of this control navigable waters are the pub-

lic pgoperty of the nation (Gilman v. Philadelphia,

3 Wall. 713, 725) and subject to such restraint as

Congress may deem expedient from a national point

of view, not limited by the interests of any particular

port, harbor, state or States, watershed, or any ter-

ritorial division within the national jurisdiction. As

Chief Justice Marshall said in Gibbons v. Ogden, 9

Wheat. 1,197: ‘‘If, as has always been understood,

the sovereignty of Congress, though limited to speci-

fied objects, is plenary as to those objects, the power

over commerce with foreign nations, and among the

several States, is vested in Congress as absolutely as

it would be in a single government, having in its con-

stitution the same restrictions on the exercise of

the power as are found in the Constitution of ‘the

United States. The wisdom and the discretion of

Congress, their identity with the people, and the in-

fluence which their constituents possess at elections, are,

in this, as in many other instances, as that, for ex-

ample, of declaring war, the sole restraints on which

they have relied, to secure them from its abuse. They

are the restraints on which the people must often

rely solely, in all representative governments. ”’

As stated by the Special Master in his 1927 Report

(p. 157), the recognition of the power of Congress to

control the diversion of water from Lake Michigan to

Q +

the Mississippi watershed necessarily underlay ihe deci-

sion in Sanitary District v. United States, 266 U. §. 405,

426 (1924). The power of Congress to authorize the with.

drawal of water from Lake Michigan for navigation pur-

poses was recognized in Wisconsin v. Illinois, 278 U. §.

367, 417 (1929), ayd in Wisconsin vy. Illinois, 281 U. 8. 179,

198, 200 (1930). ~ *

It is of the essence 9f the power of Congress that it

has the final determination of matters pertaining to navi-

gation. (Master’s 1927 Report, 161.)

A river is a navigable water of the United States with.

in the meaning of the acts of Congress. It is patent that

the Illinois Waterway is a waterway of the United States.

The power of the Congress over it is absolute and

‘“plenary’’. (United States v. Appalachian Electric Power

Co., 311 U. S. 377, 427 (1940); United States v. Twin City

Power Co., 350 U. S, 222 (1956); First Towa Coop. v.

Power Comm’a., 328 U. 8. 152, 182 (1946) ; United States

v. Willow River Co., 324 U. S. 499, 509 (1945); United

States v. Commodore Park, Inc., 324 U. 8. 386 (1945) ;

Oklahoma v. Guy F. Atkinson Co., 312 U. 8. 508 (1941).)

Congress alone has dominion over navigable waters. In

authorizing the withdrawal from Lake Michigan allowed

by the 1930 decree, Congress stated the purposes to be

‘‘for the navigation of said waterway.’’ (p. 15, st&pra.)

The Court cannot inquire into the motives of the members

of Congress in passing the Act. The fact that purposes

other than navigation will also be served could not invali-

date the exercise of the authority conferred by the Act,

even if those other purposes, standing alone, would not

have justified an exercise of Congressional power. (Arizona

v. California, 283 U. 8. 423, 455-456 (1931).)

It is therefore submitted that the Rivers and Harbors

Act of 1930 settles beyond all dispute the right of the

defendants te discharge the effluent from domestic pump-

age into the Chicago River, instead of Lake Michigan, for

navigation purposes of the Illinois Waterway.

The words of the Special Master in his 1927 Report

(p. 154) on thas precise issue are particularly apt.

If Congress decided that it was in the interest of

the country as a whole to open and improve a°water-

way from Lake Michigan to the Mississippi River and

the Gulf of Mexico, and for that purpose diverted

water from Lake Michigan to the Mississippi water-

shed, there would seem to >be no constitutional diff-

culty so far as the diversion is concerned. Its prac-

ticability, its amount, the effect on the Great Lakes-

St. Lawrence watershed, and on the States bordering

on the Great Lakes, the question where the balance

of national interest lay after appropriate appraisal

of all local interests and of international’ relations,

would be matters for the consideration of Congress

exercising the sovereign power of the nation in de-

termining national policy.

Congress, having so decided, has put an end to the

matter.

Iii.

Assumed Population Growth Is Not Ground for the Relief

Asked and, on the Basis of Experience, Will Result in

an Insubstantial Increase in Domestic Pumpage and an

Insignificant Reduction in Lake Levels.

In its motion (par. 9) the State of New York charge:

that the amount of. water now withdrawn from the Lake

for ‘‘domestic pumpage is excessive’’ because of population

and industrial growth and of a projected increase in growth

within the next 20 years. The application (par. VI) specifi-

cally charges that the population will reach 15 or 20 millions

within the next 20 years and that domestic pumpage will be-

come ‘‘more and more excessive.’’ No charge is made that

more water is used for domestic pumpage than is needed to

serve the area, nor do complainants charge the defendants

with waste or with nsing an unreasonable amount of water

for domestic pumpage. Their charges are based solely on

population projections into the future and potential indus-

trial development. An increase in demand for water is

assumed by the complainants, but ‘‘excessive’’ use, in the

sense of unreasonable use, is not alleged or assumed.

Of material importance is the fact that the amounts of

water used for domestic pumpage as shown in the complain-

ants’ application (par. V, p. 11) for the years 1939, 1954,

and 1956 are not substantially greater than the amount

(1700 c.f.s.) used in 1930. The amount of waier withdrawn

from the Lake for domestic pumpage in the three years

mentioned, as derived from paragraph V of the application

and page 31 of Complainants’ Argument, is as fullows:

Total Direci Donestic

Withdrawal Diversion Pumpage

3110 c.f.s. 1500 e.f.s. 1610 ¢.f.s.

3205 c.f.s. 1500 e.f.s. 1705 c.f.s.

3500 c.f.s. , 1700 c.f.s.* 1800 c.f.s.

- {939

1954

1956

If the amount of domestic pumpage in 1939 was 1610

c.f.s., and 1 8. n/1954, as stated in the application

(par. V. p. 11) the increase over this 15 year period was

95 c.f.s. On page 31 of their argument the complainants

* The direct annual average diversion of 1500 ¢.f.s. was increased

in 1956 as a result of the order of this Court entered on Decem-

ber 17, 1956 (Wisconsin v. Illinois, 352 U. S. 945). While that

order authorized an average increase of 8500 c.f.s., an increase

of only 8000 ¢.f.s. was reached, according to the Army Engineers,

as reported by the Solicitor General in his memorandum’ to the

Court in January, 1957.

assert that at the present time approxiniately 1800 c¢ f.s.

is extracted for domestic pumpage. This means the in

the 19 year period the domestic pumpage, on complaina its’

own statements, has increased enly 190 ¢«.f.s. But even

that increase is more apparent than real. A summary of

the annual pumpage and diversion, as measured by the

Sanitary District and the Army Engineers from 1930

through 1956, shows an average annual pumpage of 1643

ef.s. (See Appendix E.)** This summary is graphic proof

that the complpinants’ claim lacks factual basis. The sum-

mary shows that the amount of domestic pumpage used

annually goes up and down; that it was 1700 c.f.s. in 1930

rand reached a low. point of 1507 c.f.s. in 1945, and that in

1939 it was 1582 ¢.f.s. (not 1610 ¢.f.s.), the third lowest

annual withdrawal. in the 27 year period. It seems im-

proper to advance an argument based on the diffeyence

between one of the lowest years in the 27 year neriéd and

the highest year in the period, which was 1956. The dif-

ference between 1930 and 1956 was only 105 ¢.f.s. (Appendix

K, infra, p. 43.) But no matter how the comparison be

made, from the complainants’ own figures and_the actual

figures, it is obvious that there has been no consequential

increase.

Colonel Dan I. Sultan, in a report made in 1933 pursuant

to the Rivers and Harbors Act of 1930 (House Document

184, 73rd Congress, 2nd Session, par. 16, p. 11; pars. 90 and

94, pp. 48-49), estimated an average of 1700 ¢.f.s. for dom-

estic pumpage ‘‘for some years to come.’’

** The data compiled on Appendix E showing the annual aver-

age amounts of diversion and pumpage for the years 1930 to 1956,

inclusive, are as eentained in the official records of the United

States. Army District Engineer at Chicago, as officially computed

pursuant to the provisions of paragraph number 4 -of the decree

of April 21, 1930. :

Aecording te’a report made in January 1.957 by the Di-

vision Engineer, Brigadier General P. D. EF errigan, North

Central Division Corps of Engineers, U. 8. Army, sub-

mitted to the 85th Congress on H. R. 2, a withdrawal of |

1,600 ¢.f.s. would reduce the levels of Lake Michigan and

Lake Huron one inch in 15 years, and the levels of Lake

Erie and Lake Ontario 5/8ths of an inch. On this basis, a

withdrawal of 190 c.f.s. would result at the end of 15 years

in a reduction of less than 1/5 of an inch for Lake Michigan

and Lake Huron and about 1/8 of an inch for Lake Erie and

Lake Ontario. But, again, even this reduction is purely

fanciful because on the average there has not been such an

increase in the 27 year period between 1930 and 1957, and if

the difference of only 105 c.f.s. between 1930 and 1956 is

taken as the criterion, the reduction in lake levels, using the

same method of calculation, would be jess than 1/10 of an

inch for Lake Michigan and Lake Huron and less than 1/16

of an inch for Lake Erie and Lake Ontario.

This insignificant, reduction is hardly that change in

circumstance which would warrant the drastic revision of

the decree requested by the complainants. To force an

expenditure of hundreds of millions of dollars in rearrang-

ing the Sanitary District’s facilities to extend tunnels

miles out into the lake forthe discharge of sewage effluent

would appear to be grossly disproportionate to the benefit

to be derived by the preservation of a conjectural 1/10 or

1/16 inch of lake levels. Moreover, this Court has said

that before it can be moved to exercise the extraordinary

power to control the conduct of one State at the suit of

another, the threatened invasion of rights must be of seri-

ous magnitude and it mast be established by clear and con-

vineing evidence. (North Dakota v. Minnesota, 263 U. S.

365, 374, 386 (1923).)

a ta

’ As pointed out in Point I above, it is the defendants’

contention that their right to withdraw water from Lake

Michigan and discharge the sewage effluent into the canal

has been adjudicated, but if the defendants should be wrong

in this contention, and if the complainants’ own statements

are taken at face value, the whole matter of additional dom-

estic purapage is de minimis.

The complainants also purport to rely on alleged inade-

quacies of the estimates made in 1930 of the Chicago area’s

future growth. It is said (Application, p. 25) that in the

hearings before the Special Master witnesses estimated

that in 1960 the population served by.the Sanitary Dis-

trict would expand to 5,860,000, with an industrial waste

equivalent of 2,300,000 more, whereas in fact the present

human population is 4,600,000, and an industrial waste

equivalent of 3,800,000. The total is thus now 8,400,000 in-

stead of the 8,160,000 predicted in 1929 for the year 1960.

The 1929.prediction. was amazingly accurate and Chicago’s

actual growth has conformed closely te it. Again, there

has been no change justifying a rewriting of the d--ree,

Complair-ts rely on a projected growth in population

and industry within the next 20 years to 15 or 20 million

persons (application VI). This projection is of course

nothing ‘more than surmise. Such speculation about the

future would not warrant a drastic change in the 1930 de-

cree (Arizona v. California, 283 U. S. 423, 462-464 (1930))

even if the Rivers and Harbors Act did not stand in the

way of the-modification requested by the complainants.

The fact remains that the Special Master referred to

the ‘‘great and growing population’’ (Master’s 1929 Re-

port, pp. 136, 137) and the Court could not have been

oblivious to it. If anticipated population and industrial

yaa

” é

growth did not constitute a bar to the discharge of domestic

pumpage into the Sanitary Canal in 1930, it should not

constitute a bar now, particularly in view of the fairly

accurate projected increase in population and the insignifi-

cant (100 c.f.s.) increase, on the basis of complainants’ ows

averments, in ‘‘domestic pumpage’’ in 1956 as compared

to 1930, when the decree was entered. |

(

IV.

The Application Is Predicated on the Erronequs Assump-

tion That Recent Studies Have Established a Diversion

of 1500 c.f.s. Without Domestic Pumpage To Be Adeq

for Navigation in the Illinois Waterway.

The complainants contend (Application, 17, 39) that re-

cent studies made by the United States Corps of Engineers

have established that a diversion of 1500 c.f.s. is adequate

to maintain navigation in the Port of Chicago and the Ili-

ncis Waterway ‘‘without additional water in the form of

‘domestic pumpage’.’’

in their argument (p. 39) complainants rely upon and

quote from paragraph 184 of the report made in J anuary,

1957 by the Division Engineer, Brigadier General Pr. Ee

Berrigan, North Central Division Corps of Engineers,

United States Army. The report is entitled ‘‘Effect on

Great Lakés and St. Lawrence River of an Increase of 1,006

Cubic Feet Per Second in the Diversion at Chicago,’’ and

was prepared at the request of the Director of the Budget

following the President’s memorandum ‘of disapproval of

H. R. 3210, 84th Congresss. This report on its face dealt

with an increase in the diversion at Chicago. It did not

purport to discuss the possibility of a reduction in the total

withdrawal of water from Lake Michigan by the elimination

of domestic pumpage. The report was submitted to the

‘

Secretary of the Army on January 29, 1957 by Major Gen-

eral_&. C. Itschner, Chief of Engineers, and later sub-

mitted to the 85th Congress at the House Hearing on H. R.

2, to be discussed under Point VII, infra. :

Paragraph 184 includes this statement:

* * * Recent studies of present and prospective water

requirements for navigation on the Ilinois Waterway

show that the authorized diversion of 1,500 cubic feet

per second from Lake Michigan is adequate to meet

those requirements,

The quoted statement itself belies the interpretation

placed upon it by the complainants. Manifestly, the term

“authorized diversion’’ as used in paragraph 184 means

the diversion “authorized by the decree of 1930 and the

Rivers and Harbors Act of 1930, discussed under Point II,

supra, namely 1500 c¢.f.s. ‘‘in addition to domestic pump-

age.’’ And it is a clear fact that the Corps of Engineers,

United States Army, has always used the term ‘‘diversion’’

as not including domestic pumpag: that is, to mean the

gross flow at Lockport less the an ount of water) used

for domestic purposes. (Master’s 1927 Report, 75;

Master’s 1929 Report, 120.) The Special Master also-

adopted this definition of the term ‘diversion’. (Special

Master’s 1929 Report, 143.)

That General Berrigan used the term ‘‘diversion”’ as so

defined is demonstrated conclusively by a reference to para-

graph 183 of the same report relied upon by the complain-

ants. In this paragraph reference is made to an earlier re-

port by Colonel Dan I. Sultan made in 1933, in which Gen-

eral E. M. Markham, Chief of Engineers, concurred, pur-

sufit to the Rivers and Harbors Act of 1930. Colonel

Sultan and General Markham had reported (House Docu-_

ment 184, 73rd Congress, 2nd Sess., 6, 58) that.a direct di-

version of 1500 c.f.s. in addition to domestic pumpage was

required to meet the needs of a commercially useful water-

= ae

way in the Illinois River, pending a conclusive determina-

tion after the completion of the sewage treatment works at

Chicago. But in summarizing this report General Berrigan

in paragraph 183 said that the report ‘‘found that 1500 see.

ond feet was the minimum flow required.’’ He did not find

it necessary to say that the 1500 c.f.s. was in addition to

domestic pumpage.

Since the Division Engineer in paragraph 183 of his 1957

report did not expressly include domestic pumpage in sum-

ming up the earlier 1933 reports in which domestic pump-

age was specifically included, as a component part of the

water withdrawal, along with the 1500 c.f.s. directly di-

verted, it ry obvious that the Division Engineer did not

deliberately intend to exclude domestic pumpage in sum-

ming up the ‘‘recent studies’’ referred to in paragraph 184

of his report. Instead, in both paragraph 183 and para-

graph 184 he took domestic pumpage for granted, in addi-

tion to the direct diversion, as a part of the water

requirements for navigation in the Illinois Waterway.

Defendants know of no reports by the United States

Corps of Engineers, past or present, since the entry of the

1930 decree, which show that 1500 c¢.f.s. without domestic

pumpage is sufficient for the navigation needs of the Illinois

Waterway. Defendants submit that the complainants’

construction of paragraph 184 of General Berrigan’s re-

port of January, 1957 is patently unt@nable.

Waterpower and Seaway Projects Authorized After 1930

Afford No Grounds for Abrogating the Provisions of the

1930 Decree and the Rivers and Harbors Act of 1930

Authorizing the Withdrawal of Water for Domestic

Pumpage for Navigation Purposes in the Illinois Water-

way.

Equally lacking in merit, for a number of reasons, is the

reliance by the complainants upon the development of hy-

dro-electric power in the St. Lawrence and Niagara Rivers

and the St. Lawrence Seaway project. (Motion, par. 11;

application pp. 13-17.) care

(1) The first fallacy in the complainants’ argument

(application p. 35) lies in the assumption that these projects

enlarge rights the complainants had in 1930 when the decree

was entered authorizing a diversion of 1500 c.f.s. in addi-

tion to domestic pumpage. These projects could not create”

rights not existing before. If complainants’ legal rights

did not entitle them at that time to a cessation of the with:

drawal of water from Lake Michigan by the defendants

for domestic pumpage without returning the effluent to the

Lake, they should not be entitled to it now.

(2) Most clearly, the St. Lawrence and Niagara pro}-

ects, authorized by Congress in the 1950s, came long after

this Court’s 1930 decree and the Rivers*and Harbors Act

of 1930, and must be assumed to have taken into con-

sideration the lakes and their levels as affected by that

decree and the Congressiofial Act. The complainants have

pointed to nothing—and can point to nothing—in the his-

tory of the enabling legislation or treaties which even re-

motely suggests that the projects were dependent in the

‘slightest on reducing the amount of diversion permitted

98°

to the defendants by the 1930 decree and Act. Cer-

tainly nothing in the equities of the situation requires

the defendants in their right to prior use of water,

pursuant to the decree of the Court and the Rivers and

Harbors Act of 1930, to yield to New York’s subsequent

power projects. Unquestionably, the channel depths for

the St. Lawrence Seaway project, as well as the power

projects, have been predicated on the Chicago diversion

as authorized by this Court and by Congress.

(3) The net loss of waterfall between Lake Erie and the

sea attributable to defendants’ increased domestic pumpage

would be infinitesimal.

(4) If the question should become one of balancing equi-

ties, or one of broad public policy, the need for water for

domestic and Sanitary purposes is gaven preference over

navigation and power in both the Canadian Boundary

Waters Treaty of 1909 (36 Stat. 2448) mentioned in para-

graph VIII (2) of the application and in the 1950 Treaty

of Niagara, between the United States and Canada (TIAS

2130) referred to in paragraph VIII (11), (12) of the appli-

cation. In his 1927 Report the Special Master in comment-

ing on the 1909 treaty said (55):

«* 94° With reference to the use of boundary waters,

it was provided that the following order of precedence

should be observed among the various uses enumerated

in the treaty for these waters, to-wit: (1) uses for

domestic and sanitary purposes; (2) uses for naviga-

tion, including the service of canals for the purposes of

navigation; (3) uses for power and for irrigation pur-

poses. These provisions were not to ‘‘apply to or dis-

turb any existing uses of boundary waters on either

side of the boundary.”’

Article IIT of the 1950 Treaty provided that the amount

of water available ‘shall be the total dutflow from Lake

Erie to the Welland Canal and the Niagara River (includ-

ing the Black Rock Canal) less the amount of water used

for domestic and sanitary purposes and for the service

of canals for the purposes of navigation.”

(5) The State of New York has no ‘‘inalienable natural

resources’’ in the St. Lawrence and Niagara Rivers as

suggested in paragraph VIII (1), page 13, of the applica-

tion. The rights of New York are inferior to the power of

Congress over navigable waters (Arizona v. California,

283 U. S. 423, 451-452 (1931) ). The rights of New York

are also subject to the principle of ‘‘equitable division’’

which permits the removal of water to a different water-

shed (New Jersey v. New York, 283 U. S. 336, 342-344,

1931).

(6) As stated by the Special Master in his 1927 Report,

page 154, quoted in Point II, supra, the appraisal of all

local interests and of international relations, would be mat-

ters for the consideration of Congress exercising the sov-

ereign power of the nation in determining national policy.

Congress has exercised that sovereign power by the enact-

ment of the Rivers and Harbors Act of 1930.

VI.

The Experience of Smailer Communities Which Have No

Choice But to Return Water Used for Domestic Pump-

age to Its Source Does Not Furnish a Standard for the

Defendants to Follow.

In their application the complainants now contend that

because other municipalities on the Great Lakes dump their

sewage treatment effluents into the Great Lakes the City of

Chicago should be compelled to do likewise. (Application

X, pp. 18, 32.) :

Special Master Hughes, 30 years ago in his Report on

the original reference in 1927, disposed of an identical con-

tention by stating (136) :

‘The complainants point to conditions in other cities on

, the Great Lakes which take their water from the adja-

cent lake, into which also their sewage enters with a

certain amount, of treatment. These cities do not have

the advantage of drawing off their sewage through a

canal into another watershed. Thus, Milwav’ 2e, De-

troit, Toledo, Cleveland, and other communities must

take their water supply from the adjacent waters, and

at the same time use these waters as a receptacle for

their sewage partially treated.’’

And in his report on re-reference in 1929 the Special

Master said (136) :

‘«* * * The experience of very much smaller communi-

ties affords little aid in determining the effect of this

enormous volume of effluent from the sewage treatment

works, and the storm water run-off containing un-

treated sewage, flowing into the channels of the Drain-

age Canal and the Chicago River.”’

VIL.

Complainants’ Request for Declaration by This Court

Affecting Contemplated Congressional Action Should

Not Be Granted.

The complainants refer to bills which have been or are

now before the Congress which would authorize the tem-

porary and experimental withdrawal of an additional 1,000

c.f.s. through the Illinois Waterway for a period of three

years. (Application, 7-10, 41-42.) Two bills to that effect

passed by prior Congresses have been vetoed. A third

bill, H. R. 2, has passed the House in the present Congress

and is now before the Senate. For the Congress to pass

the bill would not be in derogation of this Court’s authority

or an affront to its dignity as complainants suggest. As

the Court has always conceded, the Congress, not the Court,

has been vested with paramount control over navigable

waters of the United States.

DAG 0 ta atn at die YG

The relevancy of the pending legislation to the prayers

of the motion and application to modify the decree is not

discernible. This Court has expressly recognized the power

of Congress to regulate the amount of water that may. be

diverted. (Wisconsin v. Illinois, 281 U. 8. 179, 197, 198, 199.) ~

If the Congress chooses to further exercise its_authority,

to that extent this Court’s decree would be superseded.

The complainant states are not seeking an injunction

against the passage of a law by the Congress. The Con-

gress has not been made and could not be a defendant.

Nor do complainants profess to be seeking an injunction

against efforts to induce the Congress to pass such a law.

Indeed, complainants assure the members of Congress

that they may introduce such bills in Congress as they see

fit (Id. at 41). Nevertheless, they ask this court for an in-

junction perpetually enjoining the defendants from divert-

ing any water for domestic pumpage from the Great Lakes

Basin (Id. at 19) because of their fear that the defendants

Wil continue to demand uu increase in the aiiount of diver-

sion. (Id. at 10.) They ask the Court ‘‘to make a clear

and unmistakable declaration that such diversion for sani-

tation purposes, even though authorized and sanctioned

by Congress, would avail the State of Illinois and the Sani-

tary District nothing.’’ (Id. at 41.)

Thus the complainants ask this Court now to assume, in

advance of the actudlenactment of pending legislation,

that the Congress will proceed iff an unconstitutional man-

ner in passing such legislation. They seek the aid of this

Court to forestall action by the Congress. Complainants

intimate that such a law would be unconstitutional. If so

—and defendants think the claim frivolons,—the time to

complain is after the law is passed.

Attached lereto, for the convenience of the Court, as

Appendix B, is a copy of H. R. 2 (85th Congress); a

history of previous bills in Congress as Appendix C;

and a report by the House Committee of the 85th

Congress favorably reporting H. R. 3210 as/ Appendix

D. These documents show that-the studies proposed in

H. R. 2 are merely the studies recommended to be made,

after the completion of the Sanitary District’s sewage

treatment facilities, by’ the Corps of Engineers in 1933,

pursuant to the Rivers and Harbors Act of July 1930,

(House Doe. 184, 73rd Congress, 2nd Session, page 51,

par. 103.) Authorizing such studies to be made by the

Secretary of the Army and requiring a report and recom-

mendation thereon to the Congress clearly are proper

exercises of the constitutional powers of the Congress over

navigable waters.

: Conclusion.

In conclusion, the defendants urge the Court to enter

an order derying and dismissing the motion of the State

of New York and the application of all the complainant

states on the ground that the motion and applicaticn do

not state facts sufficient to warrant the appointment of a

Master and do noi present an issue of which the Court can

take judicial cognizance under the 1930 decree.

The original litigation involved in these suits presented

a new question for the Courts The decree-of 1930 required

the Sanitary District to take measures at a cost of mil-

lions of dollars for tie construction of vast sewage treat-

ment plants and sewage disposal facilities. The Sanitary

District proceeded to comply with. the decree. Complain-

ant® admit (p. 29) that the District operates several large

sewage treatment plants and does a ‘‘reasonably efficient

job at these works.’’ The American Society of Civil En-

gineers in 1955 classified the Chicago sewage system as

one of the seven engineering wonders of America (Novem-

ber 1955 issue of Civil Engineering: Hearings, Subcom-

’ mittee of Senate Committee on Publié Works on H. R.

3210, S. 1772, and S. 2550, 84th Cong. 2nd Sess. 32-34

(1956)). The complainants’ present request, after silence

for more than 27 years, for a radical change in a basic.

provision of the decree is belated and unfounded and in

derogation of the Rivers and Harbors Act of 1930.

Respectfully submitted,

LatHaM CasTLe,

Attorney Reneral, State of Illinois,

~ Wim C. Wings,

Assistant Attorney General, State

of Illinois, >

Russert W. Roor,

Attorney, The Metropolitan Sani-

tary District.of Greater Chicago,

Lawrence J. Fenton,

Principal Assistant Attorney, The

Metropolitan Sanitary District of

Greater Chicago, .

JosePH B. Fiemine,

JosePpH H.-PLecx,

Txomas M. THomas,

of Kmxuanp, Fieminec, Green,

Martin & ELLs,

- Attorneys for the Defendants.

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THE '!LLINOIS WATERWAY

CHICAGO TO GRAFTON, ILLINOIS

1957

(LAKE MICHIGAN TO THE MISSISSIPPI RIVER)

APPENDIX B.

(H. BR 2, 85th Congress, 1st Session.)

A BILL

To authorize the State of Illinois and The Metro-

politan Sanitary District of Greater Chicago, un-

der the direction of the Secretary of the Army,

to test, on a three-year basis, the effect of increas-

ing the diversion of water from Lake Michigan

into the Illinois Waterway, and for other purposes.

Be It Enacted by the Senate and House of Representatwes

of the United States of America in Congress Assembled,

That, in order to provide a babis for a study of the

effect of increased diversion of water from Lake Michi-

gan upon the Illinois Waterway and the degree of im-

prcvement in such waterway caused thereby the effect of

such increased diversion upon commerce among the sev-

eral States and navigation on the Great Lakes and the

Illinois Waterway and the extent to which such increased

diversion may affect the level of Lake Michigan, authority

is hereby granted to the State of Illinois and The Metro-

politan Sanitary District of Greater Chicago, under the

supervision and direction of the Secretary of the Army,

to withdraw water from Lake Michigan, in addition to ell

domestic pumpage, at a rate providing a total annual aver-

age of not more than two thousand five hundred cubic feet

of water per second, to flow into the Illinois Waterway

during the three-year period which begins on the date of

enactment of this Act, subject to the following limitations:

(1% The maximum direct diversion from Lake Michi-

gan sha not at any time exceed a flow of five thousand

cubic feet per second;

_ (2) The Secretary of the Army shall at all times have

direct control and supervision of the amounts of water

directly diverted from Lake Michigan; and

(3) The Secretary of the Army shall not allow any

water to be directly diverted from Lake Michigan to flow

into the Illinois Waterway during times of flood in the

Mlinois, Des Plaines, Chicago, or Calumet Rivers.

Sec. 2. As soon after the date of eractment of this

Act as is possible, the Secretary of the Army shall cause

a study to be made of the effect on Lake Michigan and on

the Illinois Waterway of the increased diversion author-

ized by the first section of this Act, and the improve-

ment in conditions along the Illinois Waterway which may

result from such increased diversion. The Secretary of

the Army shall report to the Congress on or before Jan-

uary 31, 1961, the results of such study. Such report shall

contain recommendations with respect to continuing the

authority to divert water from Lake Michigan into the

Illinois Waterway in the amounts authorized by this Act,

or increasing or decreasing such amounts.

APPENDIX C.

HISTORY OF PREVIOUS BILLS IN CONGRESS.

Congressman Blatnik, Chairman of the House Sub-Com-

mittee on Public Works, at the Hearing on H.R. 2 and

éthers, March 26-27, 1957, presented the following sum-

mary, as reported on page 2 of the printed Committee

Proceedings :

‘‘SumMMARY OF Previous LEGISLATION.

The Chicago diversion was the subject of bills in

the 83rd and 84th Congresses as well as the present

Congress. The group of bills in the 83rd Congress,

of which H.R. 3300 was the subject of hearings,

were all similar. The bill was passed by the House

and Senate and was vetoed by the President.

In the 84th Congress the bill on which hearings were

held was H.R. 3210. It was substantially the same

as H.R. 3300 in the 83d Congress. It passed the

House on July 6, 1955, and was favorably reported

by the Senate Committee on Public Works on July

14, 1956. It passed the Senate on July 27, 1956, and

was vetoed by the President on August 9, 1956. In

his memorandum of distpproval of H.R 3210, the

President quoted his memorandum of disapproval

of H. R. 3300, giving as reasons for the disapproval

that all methods of control of lake levels and pro-

tection of property should be considered before pro-

ceeding with the increased diversion, that negotiations

with Canada should be considered before diversions are

authorized, and that the legitimate interests of other

States may be adversely affected. He went on to say

that a report by the Corps of Engineers was under

way and he was asking that at be expedited.

With respect to the present session, 17 bills have

been introduced, of which the first is H. R. 2. These

bills are all the same, with the exception of a difference

in one concerning regulation of the flow of the Illinois

River at Pekin, Il]. The 16 identical bills are sub-

stantially the same as H. R. 3210 of the 84th Con.

gress.’’

>»*

APPENDIX D.

HOUSE CCMMITTEE REPORT ON H. R. 3210.

The House Committee on Public Works, 84th Congress

(Report No. 1029), in favorably reporting H. R. 3210,

stated :

‘‘The committee is aware that the diversion of water

at Chicago from Lake Michigan through the drainage

canal of the sanitary district has been the subject of

considerable controversy. It will be noted, however,

that H. R. 3210 differs from bills offered in previous

Congresses in that it imposes certain limitations with

respect to the maximum amount of diversion that could

be effected at any one time. The bill expressly speci-

fies that the maximum direct diversion from Jake

Michigan shall not at any time exceed a flow of 5,000

cubic feet per second and provides that the Secretary

of the Army shall at all times have direct control and

supervision of the amounts of water directly diverted

from Lake Michigan. Further, it provides that the

Secretary of the Army shall not allow any waiter to

be directly diverted from Lake Michigan to flow into

the Illinois Waterway during times of flood in the

Illinois, Des Plaines, Chicago, or Calumet Rivers.

These are safeguards which the committee believes

will meet some of the objections of residents and prop-

erty owners of the downriver area.

The committee believes that in view of the radically

changed conditions since the 1933 report was made to

Congress, that the Secretary of the Army should cause

a new study to be made. Testimony of representatives

of the Corps of Engineers indicated that such a study

should extend over a period of approximately 3 years

and also that experimental temporary increases in

annual average diversion of not to exceed 1,000 cubic

feet per second should be authorized during the course

er Ty PE ETT RP ES rts

Jaf ae ne

of the study. This amount of diversion during the

study could have little adverse effect on lake or river

interests and would afford an opportunit? to secure

much valuable information on the exact effects of an

increased flow. The 3-year study period would be a

test period during which time the Corps of Engineers,

together with the Public Health Service, would observe

and evaluate the effects of the increased diversion.

At the end of that period a report would be made to

the Congress containing recommendations as to

whether such diversion is beneficial and whether it

should be decreased or increased. The effects of the

temporary diversion would be incorporated into the

Great Lakes Water Levels Report which will be sub-

mitted to Congress by the Secretary of the Army as

a result of a study now under way by the Corps of

Engineers.

The lowering effect on the lakes of the additional

1,000 cubic feet per second would be less than 1 inch

on Lakes Michigan-Huron and about one-half inch on

Lakes Erie and Ontario, and these effects would not

be realized until several years after the increased

diversion commenced. |

The committee is of the view that the experimental

increases and the study authorized in this bill will

afford an opportunity to secure much valuable infor-

mation on the exact effects of an increased flow through

the Illinois Waterway.’’ ;

APPENDIX E.

ANNUAL AVERAGE METRO PUMPAGE AND DIVERSION FROM

LAKE MICHIGAN BY SANITARY DISTRICT OF CHICAGO

1930 to 19656 incl.

Total

diversion

& pumpage

Metropolifan froin Lake

pumpage Diversion Michigan

cfs cfs cfs

Dh awesaees 6 _ 6660 -—

Bat ecuasanees 6500

* POR RSs 1650 6450° 8100

ss ee wedaent 1690 6270 7960

Sie ane cy dine 1692 6433 8125

Sst tcewids' 1602 t4s4 8086

i ateshucacaes 1712 4862 6574

Pa chawkuctwe 1665 4989 6654

Mi asscassneens 1604 4999 6603

ee 1582 1499 3081

Mn srs Ke'vad ema 1589 1681* 3270*

tiie Wen unas 1610 1496 3106

errr 1575 1§28** 3103**

Sdekiceeeene’s 1605 1500 3105

MWe cite de pine 1606 1531** 3137**

Pa wav touees 1507 1498 3005

MR: \saced Wika 1600 1495 3095

Ol naddcuakewes 1616 "1500 3116

RN le 1640 1500 3140

-cakwwiee «eas 1641 1493 3134

gids vwne ues 1607 1499 3106 “

eae 1616 1490 3105

EE ede pavnee des 1633 1497 3130

PE 1892 1455 3191

Dh dvcdbasdncen 1708 1497 3205

wkdvkies kehs 1739 1500 3239

Me xkencsursans 1805 1699* 3504*

* Increase authorized by order of U. S. Supreme Court.

** Increase authorized by order of War Department.

The foregoing figures are contained in the official records of the United

States Army District Engineers at Chicago, as officially computed pursuant

to the provisions of paragraph number 4 of the Cecree of April 12, 1930.

eee nye ee SPO TE Oe LECT RATE ENE NIE REET 6 AD IMPOR NN IE IN NO NS RRO Seer PRT A Ee te

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.