Reply Brief — Connecticut v. Massachusetts

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DEC 29 1930

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In the

Supreme Court of the United States.

OctosER TERM, 1930.

No. 12, ORIGINAL.

THE STATE OF CONNECTICUT

THE COMMONWEALTH OF

MASSACHUSETTS.

MASSACHUSETTS REPLY BRIEF IN OPPOSI-

TION TO CONNECTICUT'S BRIEF IN SUPPORT

OF THE EXCEPTIONS TO THE REPORT OF

THE SPECIAL MASTER.

~ JoserH E. Wagner,

Attorney General of Massachusetts.

~ Bentitey W. WarRREN,

Special Assistant Attorney General.

~ Gerratp J. CALLAHAN.

J R. Amoi Cutter.

ADDISON ©. GETOHELL & SON, LAW PRINTERS, BOSTON.

5 AIR aE, Fa.

SUBJECT INDEX

Page

STATEMENT OF ARRANGEMENT OF BRIEF ..........0.004. ]

Decvesion OF CONNECTICUT BRIEF .......50 620005505 2

REFERENCES TO CONNECTICUT BRIEF

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INDEX

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INDEX ill

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INDEX OF CASES

Clask ¥. er, Th Pee. DR nk cc ce cesccaless 26

Elliot v. Fitchburg Railroad, 10 Cush. 191 ............ 26

Georgia v. ‘Tennessee Copper Co., 206 U.S, 230, 237 ..... 31

Kansas v. Colorado, 206 U.S. 46 ...... ccc cece ccc ence 26, 31

STATUTE INDEX

River and Harbors Act of 1889, section 10 ............ 28

Pet ae ,

Pit "tsa , Ree CM tM RE RN RAR EPSPS

_ Sata RP = 7 —

In the

Supreme Court of the United States.

OcroBerR TER\M, 1930.

No. 12, ORIGINAL.

THE STATE OF CONNECTICUT

THE COMMONWEALTH OF

MASSACHUSETTS.

MASSACHUSETTS REPLY BRIEF IN OPPOSI-

TION TO CONNECTICUT'S BRIEF IN SUP-

PORT OF THE EXCEPTIONS TO THE RE-

PORT OF THE SPECIAL MASTER.

STATEMENT OF ARRANGEMENT OF THIS

REPLY BRIEF.

For the convenierce of the court the argument herein

contained upon the principal brief filed by the State of

Connecticut in support of its exceptions is set down under

references to the pages of the Connecticut brief to which

the argument is pertinent.

te at ad 2 8 ACRES a ts ¥ OLAS

NTIS: Ce SP RS EE I ITD REO FR CIEE EAI LILA SE BORE Fig OR Pa 7

DISCUSSION OF CONNECTICUT BRIEF.

Connecticut Brief, p. 4:

The discussion of the pleadings contained in Connectj-

cut’s brief should be compared with that found on page 9

et seq. in the original Massachusetts brief in opposition to

the Connecticut exceptions (hereinafter referred to as the

“original Massachusetts brief”’).

Connecticut Brief, p. 5:

The last paragraph on the page purports to summarize

the Massachusetts answer in one particular. A discussion

of this paragraph of the answer will be found at pages 15]

through 155 of the original Massachusetts brief.

Connecticut Brief, p. 6:

The statement in the last sentence of paragraph num-

bered 2 on page 6 of the Connecticut brief should be read

in connection with paragraph 11 on pages 12 and 13 of the

Reprint of the Answer, wherein Massachusetts concedes

the binding authority of the Secretary of War and his find-

ings (see also Reprint of Answer, pp. 6,7, 8, 9).

Connecticut Brief, p. 6:

The summary contained in paragraph numbered 5 on

page 6 of the Connecticut brief of certain portions of the

Massachusetts answer is misleading. The allegations of

the paragraph of the answer, which Connecticut purports

to summarize, set up the facts and defenses discussed in the

Massachusetts brief at pages 5 to 7, and at page 86 et seq.

A careful and accurate description of the negotiations

between the Metropolitan District Water Supply Com-

mission of Massachusetts and the Secretary of War and

the Chief of Engineers will be found at pages 6 to 9 of the

+ * 3a

Reprint of the Answer (see also Appendix B, page 81;

Appendix C, page 102, Reprint of Answer).

Connecticut Brief, p. 8:

No mention of the reply filed by Connecticut is made in

the Statement of Pleadings in the Connecticut brief. This

reply is discussed in Massachusetts brief at page 12 and at

pages 151 to 155, especially page 153.

CL a Sn eee anaes tev ae ne ee aE a ew,

Connecticut Brief, p. 8:

Only scant mention of the Special Master’s Report is

made at this point by Connecticut. A careful outline of

this report will be found in Massachusetts brief at pages

7 to 9, 12 to 16, and at 136 to 143.

Connecticut Brief, p. 9:

The first paragraph on this page purports to summarize

certain legal contentions of Massachusetts as to the law

applicable to this interstate controversy. These conten-

tions of Massachusetts are set out fully in the original Mas-

sachusetts brief at pages 98 to 133, especially pages 98 td~

114.

Connecticut Brief, p. 10:

It is submitted that the statement in the first paragraph

on this page of the Connecticut brief is misleading. A full

discussion of the provisions of the statute creating the

Metropolitan Distriet Water Supply Commission will be

found in the original’ Massachusetts brief, pages 30 to 41.

The statutes themselves_are printed at length in the Re-

print of Answer,at_pages 36 to 80. The interpretation of

these statutes made by Connecticut in this paragraph is

erroneous (see Massachusetts Brief, pp. 30-41). The lan-

guage of the statutes, read in the light of their legislative

history, shows that Connecticut is not warranted in trying

to streteh the broad powers given to the Metropolitan Dis.

trict Water Supply Commission, to take such water rights

as it must inevitably destroy in the execution of the Ware-

Swift project, into an authorization to take waters for the

purpose of supplying the Metropolitan District about Bos-

ton, even from other streams not in any way necessarily

involved in the Ware-Swift project. It is perfectly obvi-

ous that the Massachusetts Legislature did not authorize

the taking of any waters or water rights, except so far as

might be necessary in accomplishing the diversion of the

waters of the Ware and Swift Rivers, which diversions

alone were specifically permitted in the two Acts found in

the Reprint of the Answer (pp. 36-80).

Connecticut Brief, p. 12:

The first paragraph under the heading “Navigation”

refers to the existence of navigation by pleasure and com-

mercial craft between Hartford and Holyoke. For the

one year of which statistics were in evidence, 1928-1929,

no commerce was reported between these two points. The

only navigation reported was one derrick and forty-six

pleasare boats (Joint Sum. p. £9). The only substantial

testimony as to navigation between these points was given

by Captain Burgi (Joint Sum. p. 48 et seq.), who stated

that he was the owner of a yacht which he sometimes used

as a towboat in the rare instances when it was necessary to

take pile drivers, dredges, ete., from Hartford to Spring-

field. He testified that there was no great volume of

navigation between these points.

The third and fourth paragraphs under the heading

Navigation,” on page 12 of the Connecticut brief, fur-

nish an instance of the willingness of Connecticut to use

weehly average figures of stream flow when it suits their

convenience, and the stream flow figures for individual

days when they are beneficial. The reasons that average

figures do not in every instance represent the exact situa-

tion to be exvected when the Hartford gauge stands at a

particular level are discussed fully at pages 49-51 of the

original Massachusetts brief. The yardstick adopted by

the War Department to determine when a release of addi-

tional water from the Swift River Reservoir would be

necessary in the interest of navigation was the Sunderland

gauge. Various elements enter into the situation. which

make it impossible for that gauge accurately to reflect on

every occasion the state of the river at Hartford. However,

it seems to be the best index now in existence of normal tlow

conditions of the river. The Chef of Engineers so found

in his recommendations as to the Swift River diversions

(see Reprint of Answer, p. 97). ‘The following quotation

is pertinent: “The discharges of both rivers are affected

and regulated to a considerable extent by mill and power

dams which temporarily store water to suit occupational

uses. The stage of the river at Hartford is indicated by a

gauge at that point. The surface elevations are affected

by tide and wind. ‘The best information of normal flow

conditions of the Conneeticut River is afforded by the rec-

ords of the United States Geological Survey gauge at

Sunderland, Massachusetts, located on that river about as

far above Hartford as the site of the proposed dam on the

Swift River. Study of the gauge records indicates that

critical stages normally occur between June 15 and No-

vember 15. The critical period for navigation is taken as

from June 1 to November 30” (see also subparagraph (d)

at page 99 of the Reprint of Answer).

Connecticut’s exhibit (Exhibit C-41) purports to show

that on agumber of days in each year, even when the Hart-

ford gauge is at 2.0 feet or less, there will be in fact a diver-

sion instead of an increase in the flow of the river even

under the War Department findings. This is to some ex-

tent true, merely because an average figure does not repre-

Gert ei mr dew ae

aia ote ndiaiie omen Tarn See Mg UET ~ ay

sent necessarily the situation to be found i In every given in-

stance. By the same token, how ever, on a number of days

when the Hartford gauge stands above 2.1 feet there will

actually be an increase in the flow of the Connecticut River

because of the War Department ings. "This variation

from the average is due to the slight imperfection in the

best available standard [the Sunderland gauge] for mea-

suring the need of a discharge from storage on the Swift

River. Connecticut was heard fully before the War De-

partment, as the Chief of Engineers stated in his finding

(see Reprint of Answer, p. 96, par. 7). Apparently Con-

necticut engineers were unable to suggest any better index

of the need of a release of water from storage than the Sun-

derland gauge. The comparatively rare occasions in which

there is a departure from the average situation are negli-

gible in view of the fact that so many other elements

than the Massachusetts project affect the stream tlow of

the Connecticut River at Hartford. Materially greater

changes than those caused by the Massachusetts project

might reasonably be expected because of the ponding of

water behind the dam of the Northern Connecticut Power

Company at Windsor Locks. Various witnesses called by

Connecticut stated that the ponding over the week-end

‘aused a very a at decrease in the depth of the river (see

Joint Sum. pp. 41, 46, 47). Even if a very much more

substantial pee of water were to be released from the

Swift River Reservoir immediately prior to this week-end

ponding, it would have slight effect upon the height of the

river at Hartford because of -he interv ening storage in mill

ponds. 7

In considering the question of the effect of the War De-

partment findings, it should be remembered that only

very small amount of the diversion proposed under the

Ware-Swift project takes place duri ing times of even mod-

erately low flow. The testimony of Dr. Winsor, sum-

marized at page 26 of the Joint Summary of the Evidence,

ag TR ts

¥ i S OT

tase e ao

is highly pertinent. ‘fe stated “that the flow of the Con-

necticut River actually diverted by the Ware and Swift

project under War Department restrictions averages

about 2 percent; (1416) that the average annual flow of

the Connecticut River at the Massachusetts-Connecticut

state line corresponding to 17,000 cubic feet per second is

542.1 billion cubic feet per vear; that the average net an-

nual diversion under Massachusetts legislation as modified

by the War Department is 10.8 billion cubic feet per year,

corresponding to about 300 cubic feet per second; (1418)

that of this 10.8 billion cubic feet, which is the net total an-

nual diversion, 8.1 billion cubic feet. or three-fourths of

the total, is taken away when the Hartford gauge reads

above elevation 7.4 or 17.4 feet above project channel bot-

tem: that 2.1 billion cubic feet. or nearly one-fifth of the

total, is taken away when low tide on the Hartford gauge

stands between 3.5 and 7.4 feet; (1419) that in other

words, a total of 10.2 out of 10.8 billion cubic feet, or 94

percent of the total diversion, is taken out when low tide

on the Hartford gauge stands above elevation: 3.5, or 13.5

feet above the project channel bottom, leaving a balance of

some six-tenths of a billion cubic feet of the total of 10.8

billion cubic feet, which is taken out when low water on the

Hartford gauge is below 3.5 feet; that, however, if at

any time low tide is below 2.1 on the Hartford gauge,

which corresponds to 12.1 feet above the project channel

bottom, the interests of navigation are safeguarded by

the release of stored waters from the Swift River Reser-

voir under the requirements of the War Department, so

that the navigable depth is slightly increased at times

of lowest flow; (1420) that the amount of stored water

which would be released under the War Department

requirements, and which will increase the flow in the Con-

necticut River above what it would have been without

any development of the Ware-Swift diversion project,

averages about 146 million cubic feet per year, or three

one-hundredths percent of the average annual flow of the

Connecticut River at the Massachusetts-Connecticut state

line.”

The testimony makes it ebundantly clear that, on the

average and so far as available methods make it possible,

the Massachusetts project as modified by the War Depart-

ment findings is designed to bring about:

1. the taking of as much water as possible from the

Ware and Swift Rivers at times of high flow.

2. the taking of no water from the Connecticut River

when the Hartford gauge is likely to be below 2.1 on the

next day. [The best index of when this is likely to be has

been found to be the Sunderland gauge. ]

3. the taking of only a trivial proportion of the stream

when the Hartford gauge is between 2.1 and 3.5.

4. the release of additional water from storage when-

ever the Hartford gauge is below 2.1. The inherent in-

fimmity m the law of averages means that 100% perfection

‘cannot be achieved. It is submitted that the variations

from average not only will be unimportant, but will be

stused by other elements than the Ware-Swift project,

such as wind, tide, ponding, ete.

The contentions and arguments of Massachusetts in

support of the finding of the Special Master that naviga-

tion upon the Connecticut River wil! not be affected in

fact by the proposed Ware-Swift diversion as modified by

the War Department findings will be found in the original

Massachusetts brief at page 41 et seq.

Connecticut Brief, p. 13:

The Massachusetts arguments in support of the Special

Master’s finding that power on the Connecticut River

within Connecticut will not be materially affected by the

Massachusetts project will be found at page 63 et seq. of

the original brie’. The Special Master found [Rep. Sp.

M. 20-21, and no exception was taken to his finding] that

“no present use of the waters for power purposes will be

disturbed” (see Joint Sum. p. 54). The proposed diver-

sion will not affect the present plant at all, and any sug-

gestion (in the third whole paragraph on page 13 of the

Connecticut brief) that it «will is incorrect.

The arguments of Massachusetts with respect to the

alleged injury to agriculture, which injury the Special

Master found (Rep. Sp. M. 19-20) was not material, will

be found at page 57 et seq. of the original Massachusetts

brief.

Connecticut Brief, p. 14:

The arguments of Massachusetts in support of the

Special Master’s finding that no substantial decrease or

increase of poilution in the Connecticut River will result

from the execution of the Massachusetts project will be

found at pages 52 et seq. and 73 ®f the original Massachu-

setts brief. There is no evidence which supports the state-

ment in the Connecticut brief, p. 14, that “during portions

of the year it [the river] passes the borderline between be-

ing an avowed nuisance and not” (see the discussion. infra,

p. 33 et seq.). As stated in the original Massachusetts brief,

the evidence showed that on each day, when Connecticut

evidence tended to show that the oxygen content of the

river at the Massachusetts-Connecticut state line was ap-

proaching its lowest point, there would have been an addi-

tion to the total amount of water in the Connecticut River

at the state line because of the release of stored water from

the Swift River Reservoir, if the Massachusetts project as

modified by the War Department findings had been in

existence on that day (see Original Massachusetts Brief.

pp. 54, 73; see Exhibit D-4).

It is unquestionably true, as the counsel for Connecticut

suggest on page 14 of their brief, that the water of the

Connecticut River at Hartford “is so highly polluted that

it will be extremely difficult to make it available as a part

of the water supply of the metropolitan district of Hart:

ford.” This statement is a clear recognition by Connecti-

cut of the great difficulty of treating polluted waters like

the Connecticut and Merrimack Rivers so that they will be

safe to drink, There is no present project for supplying

Hartford with water from the Connecticut River. In fact

the undisputed testimony is to the effect that Hartford

abandoned the Connecticut River as a source of water sup-

ply many years ago because of the danger from pollution

(Joint Sum. pp. 88, 263). The only testimony which gave

an indication that Hartford would ever consider using the

Connecticut River was that of General Wadhams (Joint

Sum. p. 146). That testimony was vague, and referred to

the indefinite future. Massachusetts makes no contention

that a polluted stream like the Connecticut River can or

should be made use of for a domestic supply of water in its

lower reaches at the present time. For many years all the

states along this river have abandoned the main stream to

sewage and industrial uses to a very large extent, as the

Special Master indicated at page 23 of his report. As con-

ditions change in the future all the states may well be

forced into taking new precautions in connection with the

disposal of sewage and waste, and the installation of mod-

ern sewage and waste treatment plants may possibly be a

necessity. |

In connection with the statements contained in the para-

graph beginning at the bottom of page 14 of Connecticut's

brief, reference is made to the arguments in the original

Massachusetts brief, at page 56.

Connecticut Brief, p. 15:

The argument of Massachusetts in support of the Spe-

cial Master’s findings that fish life in the Connecticut

River will not be materially injured by the Massachusetts

project will be found at page 71 et seq. of the original Mas-

sachusetts brief. ‘The argument of Massachusetts in sup-

port of the Special Master's findings that the supplies of

pure and suitable water in Eastern Massachusetts were ap-

proaching exhaustion will be found at page 134 et seq. of

the original Massachusetts brief.

Connecticut Brief, p. 16:

The references to the first four paragraphs on page 16

of the Connecticut brief, to Exhibit C-1, C-2 and C-3, and

to the 1922, 1925, and 1895 reports to the Massachusetts

Legislature are hardly accurate. These reports refer to

various waters in Kastern Massachusetts. With the ex-

ception of Exhibit C-2, these reports almost uniformly

reject a very large number of waters in Kastern Massa-

chusetts, which they discussed, as obviously unsuitable and

unsatisfactory because of objections to the supplies; all

of which objections were fully discussed and considered by

the Special Master on the basis of evidence introduced be-

fore him (see Rep. Sp. M. 32-52). To the extent that

Massachusetts in the present case admits that any undevel-

oped water supplies in Kastern Massachusetts are avail-

able, it was shown by the evidence that it is the intention

of Massachusetts to develop these supplies fully for com-

munities in the immediate vicinity of the sources thus said

to be available (see infra, p. 12).

In the second full paragraph on page 16 Connecticut

refers to a plan introduced in evidence by an engineering

witness called by Massachusetts, providing for a use of the

waters of the Merrimack and Ipswich Rivers in combina-

tion. This plan was introduced in evidence in a sincere

attempt by Massachusetts to show that even a plan which

obviated many of the objections to the two plans [dis-

cussed by the Special Master in his Report page 32 e? seq.]

bpd abate

TD BLP’ CE RIL IGS

introduced in evidence by Connecticut, was open to such a

‘ast number of objections that Boston and the Metropoli-

tan District should not be obliged to resort to it. The wit-

ness who discussed this plan (Mr. Karl R. Kennison, de-

signing engineer, Metropolitan District Water Supply

Commission) indicated clearly that he would net consider

the use of the Merrimack River unless “the Metropolitan

District was forced to go to it for additional water” (Joint

Sum. p. 244, italics ours). An examination of his testi-

mony from pages 244 to 252 of the Joint Summary shows

how unsatisfactory a water supply scheme he regards even

this project for utilizing the polluted Eastern Massachu-

setts supplies. ‘he direct quotation from the evidence,

found at pages 252 to 253 of the Joint Summary, clearly

reflects his attitude.

Connecticut Brief, p. 17:

The objections to the supplies of water said by Connecti-

cut witnesses to be available in Eastern Massachusetts are

fully discussed by the Special Master at pages 32 to 52 of

his report. To his findings of fact with respect to these

objections Conneeticut has taken only trivial and inconse-

quential exceptions, as counsel for Massachusetts have

pointed out at pages 143 to 151 of the original Massachu-

setts brief. These findings of fact, it is submitted, should

therefore stand. The gross inferiority of the eastern sup-

plies is so great that this Honorable Court should adopt

the view taken by the Special Master.

The suggestion in the second full paragraph on page 17,

that Massachusetts concedes that there are two sources of

supply in Eastern Massachusetts available which have not

yet been developed and which will yield 85 million gallons

a day, is somewhat deceptive. These two sources of sup-

ply are discussed briefly in the original Massachusetts brief

at page 137 et seq. and at page 153 et seq. They are the

Assabet River, where Massachusetts admits that there are

15 million gallons a day available as an emergency supply

only, by the development of a number of very small water-

sheds in the headwaters of the Assabet River. The evi-

dence of Mr. Kennison (Joint Sum. p. 251; Transcript, p.

1941) shows that this supply should be regarded only as

an emergency supply because of the difficulty of develop-

ing the numerous small watersheds, because of the rapidly

growing population in the area, which increases the danger

of pollution, and because of the fact that approximately

50,000 people outside the Metropolitan District already

take their water supply from that area. Similar testimony

as to the danger of pollution of the supply because of the

encroachment of population was given by Mr. Eddy (Joint

Sum. p. 284). ‘To those objections pointed out by Mr.

Kennison, Mr. Eddy added the needs of the communities

downstream for industrial purposes and for the minimum

requirements of diluting even treated sewage and indus-

trial waste (see also testimony of Mr. Goodnough, Joint

Sum. pp. 220-221, 222-223).

The principal objection to the immediate use of the

Ipswich River to supply the Metropolitan District about

Bostongvith water is the fact that of the available 70 mil-

lion gafons a day of yield from the Ipswich River, accord-

ing to the agreed statement of water-supply demand in

Northeastern Massachusetts by 1970, between 40 and 47

million gallons a day of this yield would be required for

communities in the immediate vicinity of the river itself

(Joint Sum. p. 159; see figures for “18 towns in Ipswich

group’). Indeed it appears that the development of the

Ipswich River us a water-supply source for the larger cities

in Essex County has already begun. ‘Two cities, Salem and

Beverly, already take their Supply from that source. Lynn

takes a portion of its supply from the Ipswich, and study

for further development is now in progress in accordance

with the provisions of Massachusetts Resolves of 1927,

chapter 30 [see Joint Sum. p. 227]. The Metropolitan

eer eae ee

em 9es

District by that time will be forced to go to other sources,

It is obviously highly uneconomical for the Metropolitan

District to develop a supply which it would have to sur-

render to nearby communities in a very short time (see

Joint Sum. p. 227, bottom, to 228, middle; see Joint Sum,

p. 248, bottom; Joint Sum. pp. 268 to 269). The Ipswich

River supply is at best far from satisfactory because the

rater supply is limited and the quality is poor (Joint Sum.

p. 227). The increased population of this area (see Joint

Sum. pp. 228, 273, 283), the existence of a peat bottom to

the only possible reservoir site (Rep. Sp. M. 52; Joint

Sum. pp. 241 to 243; Joint Sum. p. 251, top), which would

seriously affect the quality of the water, and the eventual

need of abandoning the supply to the nearby communities

(see Rep. Sp. M. 38-39, 49; see Joint Sum. p. 251), render

this source of supply as a practical matter unavailable for

the Metropolitan District about Boston. ‘That. district

should not be compelled to develop such an uneconomical

and temporary supply as a aake-shift to postpone the

Ware and Swift developments for only a short period of

years (Joint Sum. pp. 250 to 251).

The suggestion in the fourth whole paragraph on page

17 of Connecticut's brief, that Massachusetts has permitted

its eastern supplies to become polluted, is far from: ac-

curate. The Special Master properly found (see Rep.

Sp. M. 23, 53 to 54; see page 56 of the Original Massachu-

setts Brief) that the practice in Massachusetts has not been

different from that in all the eastern states. As a matter

of fact Massachusetts has made strenuous efforts to clean

up many of the eastern streams (see Joint Sum. pp. 220-

223, 224-225, 277-278, 284-285). Most of the pollution of

the eastern streams is inevitable because of the growth of

population in the heavily populated districts in’ Kastern

Massachusetts. So far as the Merrimack River [suggested

by Connecticut as a possible source of water supply for

Boston] is concerned, the pollution is to a very great ex-

tent outside the control of Massachusetts, because most of

the watershed of the Merrimack River lies in New Hamp-

shire. An examination of the Massachusetts exhibit (Ex-

hibit I-20), inserted in the Special Master’s Report op-

posite page 45, will show how true this is (see also Joint

Sum. p. 234, and the discussion at pages 45 to 46, and the

extract from the testimony of Messrs. Barbour and George

Fuller at pages 40 to 44 of the Report of the Special

Master).

Connecticut Brief, p. 21:

A full discussion of the acts of the General Court of

Massachusetts under which the Metropolitan District

Water Supply Commission is proceeding with the Ware-

Swift project will be found in the original Massachusetts

brief, at pages 43 to 51. The Acts themselves are contained

in the Reprint of the Answer, pages 36 to #0. The state-

ment in the last paragraph on page 21 of the Connecticut

brief, to the effect that the amount of water taken from the

Ware and Swift Rivers will provide the people of Massa-

chusetts 205 million gallons a day, should be read bearing

in mind the modification of the Massachusetts Legislation

by the War Department findings. The diversion from

the Ware and Swift Rivers as permitted by the Secretary

of War will be sufficient to provide only 191 million gallons

aday (see Rep. Sp. M. 3). This reduction in yield by

the War Department findings is of course caused by the

fact that the War Department findings require substan-

tial increases in the normal flow of the Connecticut River

during dry seasons by releases of water from the Swift

River Reservoir. These releases of water already im-

pounded reduce the average vield of the Swift River Res-

ervoir supply to the Metropolitan District by 14 million

gallons a day, this quantity being added to the low flows

of the Connecticut River. The War Department findings

SRST YR gS ante bee

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do not make possible any diversion from the high flows of

the Swift and Ware Rivers in excess of that authorized by

the Massachusetts Legislation. \

Connecticut Brief, p. 27:

Paragraph (3) on page 27 of the Connecticut brief

refers to a total capacity of the tunnels leading from the

Ware River of 1900 million gallons a day. This total

‘apacity refers only to a capacity to divert water from the

Ware River alone at the same tine, both east to the Wa-

chusett Reservoir and west to the proposed Swift River

Reservoir. At any time when these two tunnels were be-

ing used to capacity to take flood waters of the Ware River,

both east and west, it would be impossible to divert any

water from the Swift River Reservoir towards Boston (see

Joint Sum. pp. 5-6; see discussion infra, pp. 16-19).

Connecticut Brief, pp. 28-29, 32-33:

As indicated in the principal Massachusetts brief ( Origi-

nal Massachusetts Brief, p. 29), Massachusetts contends

that evidence as to what may happen thirty to forty vears

from now in the way of additional water supplies for Bos-

ton is immaterial in the present case. The Connecticut ar-

gument that the size of the present construction is exces-

sive is, of course, an attempt to show a plan to divert addi-

) tional water from the Connecticut River watershed in the

distant future. The evidence of Dr. Winsor, Chief En-

gineer of the Metropolitan District Water Supply Com-

mission (see Joint Sum. pp. 6-7), shows that the present

construction is highly desirable from the standpoint of

utilizing and obtaining all possible water available under

the present project. The tunnel, now under construction,

both so far as already built and if completed through to

the Swift River, will not be large enough, according to:

Dr. Winsor, to take care of the flow Which might be sent

through it under the following circumstances (Joint Sum.

p. 6):

(1) When there is as high a flood on the Ware River

as might reasonably be expected in the light of the records

of floods since 1913, and on other similar watersheds prior

to that date (Transcript, pp. 89, 207-208, 691).

(2) When the Wachusett Reservoir ts full and it is

desired to send Ware River water to the Swift River Res-

ervoir to be stored at times of very high water on the Ware

River watershed (Transcript, p. 691).

(3) When the Wachusett Reservoir has been drawn

down to a very low point for cleaning or repairs and it Is

desired, to send large quantities of water through the tun-

nel from the Swift River Reservoir in order to fill the

Wachusett Reservoir rapidly (‘Transcript, p. 691).

(4) \uring the time when the plan for the temporary

diversion of the freshet waters of the East and Middle

Branches of the Swift River (see Joint Sum. pp. 6-7) 1s

in force. Inasmuch as there would be no storage back of

the temporary diversion dam on the Middle Branch, and

as all water taken under the temporary project must be

taken when a freshet on the Swift River is in progress, it

is necessary to send immediately all water diverted under

the temporary scheme through the tunnel to the Wachu-

sett Reservoir. About 18°¢ of the time the tunnel will not

he large enough to take care of the water which could be

diverted under this temporary project (Joint Sum. p. 7;

Transcript, p. 697), particularly because, during the con-

tinuance of the temporary diversion, the tunnel from Cold-

brook (on the Ware River) to the Wachusett Reservoir

would have to carry the flood flows, not only of the Ware

River, but also flood flows of the Kast and Middle Branches

of the Swift River, as there would be no storage available

for these waters except in the Wachusett Reservoir (Joint

Sum. p. 7; Transcript, p. 698 et seq.).

After Dr. Winsor’s testimony had gone into the case,

particularly the testimony with respect to the temporary

» diversion (see Transcript, p. 697), no further evidence

was introduced by Connecticut tending to show that Dr.

Winsor’s statement was in any respect incorrect, so that

statement as to the necessity of having the tunnel the

present size must, we submit, stand as uncontradicted in

this case, in view of the fact that apparently none of the

Connecticut witnesses, who testified before Dr. Winsor,

had considered the case of the temporary diversion which

will unquestionably affect a material saving in the cost of

the Massachusetts project by permitting a postponement

of the construction of the Swift River Reservoir ('Tran-

script, p. 1966).

The evidence of Dr. Winsor contained in the Joint Sum-

mary of Evidence (Joint Sum. pp. 7-9) shows clearly that

so far as the size of the proposed Swift River Reservoir

is concerned, whatever determination may be made even-

tually by the Metropolitan District Water Supply Com-

mission will be influenced largely by—

(1) The fact that very great additional size can be

obtained for very slight additional expenditure (Joint

Sum. pp. 8-9) particularly inasmuch as a very large

amount of land, not actually to be flooded, will have to be

acquired whatever the elevation of the flow line of the res-

ervoir may be.

(2) The possibility of a greater degree of purification

by storage in a large reservoir than in a small one.

In view of the testimony (Joint Sum. pp. 10-11) of Mr.

J. Waldo Smith, for many years the guiding genius of the

New York Water Supply projects (see Joint Sum. pp.

298, xliv), as to the desirability of large enough structures

to ensure flexibility of operation and a conservation of sup-

plies, counsel for Connecticut are hardly warranted in

criticizing Massachusetts for making ample provision for

a full development of the waters to the diversion of which

from the Ware and Swift Rivers the War Department

does not object. » This is particularly true im view of the

attempt made by counsel for Connecticut to show (see

Original Connecticut Brief, pp. 181, 185) that the Wachu-

sett Reservoir (built to supply the Boston Metropolitan

District in 1895) had not been made large enough to

develop fully the watershed tributary to it.

Connecticut Brief, p. 28:

The power plant at the Wachusett end of the tunnel

between Wachusett Reservoir and the Ware and Swift

Rivers, referred to in paragraph (7) on page 28 of the

Connecticut brief, is of course purely incidental to the

primary purpose of the Swift-Ware project. The pur-

pose of this is put very clearly in the original transcript

of the evidence by Dr. Winsor. Counsel for Connecticut

had been examining Dr. Winsor as to the state of progress

of the plans for the development of power from the head

of water created by the new tunnel. The Special Master

asked the following question (Original ‘Transcript, pp.

200-201) :

“The Master: Whatever you get from the power

development, it has the effect of reducing the cost of

the water / ,

“The Witness: It does. It would be foolish for

the Metropolitan District to fail to utilize the head

of water created by the project so as to reduce the

cost of water to the ultimate consumers. The water

must travel from the Ware River and the Swift River,

which are a considerable height above sea level, down

to the City of Boston, which is substantially sea level.

Although the water is‘needed to drink, it can mate-

rially develop power in such a way as to affect some

saving in the expense of the project.”

LEE LOLS EE LONE LIE FOF hg

‘

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At page 56 of the Transcript Dr. Winsor said: “the

only reason to generate the power is that energy has to be

dissipated, and it is an economic way to dissipate it, and

there is a market for what power you may be able to gen-

erate.”

The above comment is, of course, pertinent also to the

remarks contained in the Connecticut brief at page 31,

paragraph 7 at the bottom of the page (see Transcript,

pages 198 to 201).

Connecticut Brief, pp. 33 to 35:

The water supply demand figures, discussed at pages 33

to 35 of the Connecticut brief, are explained fully in the

original Massachusetts brief, at pages 136 to 155, especially

at pages 136 to 140 and 151 to 155.) The Joint Suminary

of the Evidence, at pages 158 to 160, contains an agreed

condensation of the evidence on this subject. The state-

ment at the middle of page 35, that there is no intention

to develop the Ipswich and Assabet supplies by Massachu-

setts, has been discussed above, supra, p. 12 et seq. While

there is no intention to develop these supplies for the Met-

ropolitan District, it is, of course, the intention of Massa-

chusetts engineers to develop them for communities in

Northeastern Massachusetts, outside the Metropolitan Dis-

trict, as rapidly as these communities need them. The

eighteen tawns in the Ipswich group alone will have a de-

mand of 47 million gallons a day by 1970. This will con-

sume a substantial portion of the water yield admittedly

available in the Ipswich River valley. The whole of this

yield will probably be required for the Essex communities

by the year 2000. It is obviously not advisable for the

Metropolitan District to develop this source, which it must

surrender to nearer communities.

Connecticut Brief, p. 37:

With reference to the table set out at the bottom of page

37 of Connecticut’s brief, it should be noted that this table

sets out the estimated yield of certain water sources which

the witnesses called by Connecticut testified was available.

The witnesses called by Massachusetts pointed out a large

number of objections to these sources, which ‘were con-

sidered by the Special Master and are summarized and de-

scribed by him at pages 32 to 52 of his report. To his find-

ings of fact, as to these objections, Connecticut ‘has taken

only minor and trivial exceptions (see Original Massachu-

setts Brief, pp. 136 to 155).

Connecticut Brief, pp. 38 to 39:

The comment just made with respect to the table at the

bottom of page 37 is applicable to the statement with re-

spect to the 379 million gallons a day mentioned at the

top of page 39. As to the 85 million gallons a day in the

Ipswich and Assabet Rivers, which Massachusetts admits

is available but is not developed, adequate comment has

already been made (see supra, p. 12 et seq.).

Connecticut Brief, p. 39:

‘The heading in italics is not supported by the argument

beneath it. and is incorrect (Joint Sum. pp. 276-277).

Connecticut Brief, p. 40:

The necessity of abandoning existing supplies of water

in the future has been discussed in a number of places in the

Connecticut brief. The undisputed testimony as to the

tremendous growth of population in the suburban areas

about the Metropolitan District, with the consequent in-

evitable increase of pollution, makes it abundantly clear

why some sources now used in the Metropolitan Area will

‘ “, 7a

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have to be abandoned in the comparatively near future

(see, for example, the testimony of Mr. Eddy, Joint Sum-

mary, pp. 283 to 284; the testimony of Mr. Barbour, Joint

Summary, p. 269). It is Just such increases of population

as this which bring about the tendency toward the aban-

donment of polluted rivers in favor of pure upland sup-

plies, mentioned by Mr. Barbour in the evidente sum-

marized at page 263 of the Joint Summary.

Connecticut Brief, p. 41:

The quotation on the top of page 41 from Exhibit C-1

should, of course, be read in connection with the legislation

in fact enacted in 1926 and 1927, subsequent to the date

of the 1922 report. That legislation, as has been pointed

out in the original Massachusetts brief, see pages 30 to 39,

expressly excluded the Millers River from any diversion

and gave no authorization, either express or implied, for

any diversion from the Deertield River.

Similar comment can be made with respect to the first

whole paragraph on page 42 of the Connecticut brief.

Connecticut Brief, pp. 40-44:

If the evidence as to the “comprehensiveness of the

present works” (now proposed by Massachusetts) was not

introduced by Connecticut for “the purpose of anticipat-

ing future injury,” there could be no conceivable basis for

introducing the evidence. The Special Master (Rep. Sp.

M. 52-53) properly disregarded the evidence as immate-

rial, particularly as no suggestion was made by any wit-

ness that any additional taking of water for Boston or

the Metropolitan District from anywhere would be neces-

sary after the completion of the Ware-Swift project until

1970 (see Joint Summary of Evidence, pp. 13-16). Dr.

Winsor stated that a further supply would probably have

to be available in 1970, and that the question of where it

ww“

should come from ought to be investigated ten to fifteen

years earlier (see also Joint Sum. pp. 276-277). Even

investigation of a new supply would not start for thirty

years.

Connecticut Brief, pp. 46 and 47:

The Connecticut objection to the fact that the Massa-

chusetts legislation authorizing a diversion from the Ware

River refers to that diversion as “a diversion of flood

waters” has been discussed fully at page 16 of the Massa-

chusetts brief.

Connecticut Brief, p. 49:

The War Department findings with respect to the Ware

and Swift diversions are discussed at length in the original

Massachusetts brief at page 86 et seq. (see supra, p. 15).

The difference of 14 million gallons a day in net average

water supply yield to Massachusetts from the project, as

originally planned, and as modified by the War Depart-

ment findings, is due almost entirely to the requirement of

the Secretary of War that Massachusetts, during periods

of low flow, make releases from waters impounded from

the Swift River during high flows. So substantial is this

low flow release that it reduces the net average yield of the

project by the 14 million gallons a day, referred to in the

first paragraph on page 49 of the original Connecticut

brief. The Secretary of War finds that the diversions

from the Swift and. Ware Rivers at times when the Con-

necticut River at Hartford stands above 2.0 on the Hart-

ford gauge will have no adverse effect upon the navigable

capacity of the river (see Reprint of Answer, pp. 99-100).

The suggestion contained in the Connecticut brief, in

the paragraph beginning at the bottom of page 49, has

been discussed in the original Massachusetts brief, at pages

39 to 41.

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Connecticut Brief, p. 51:

The statement in the last paragraph on page 51, as to

the contention of Massachusetts with respect to the juris-

diction of the War Department, is absolutely unfounded.

The position of Massachusetts is set out in the Reprint of

the Answer at pages 6 to 9, especially in subparagraphs

5 (a), (b), and (c) on pages 6 to 7:

“(a) thatno .. . permit from Congress, the War

Department, the Secretary of War, or the Chief of

Engineers is necessary for the erection of any struc-

tures as such in a non-navigable river or stream.

“(b) that the United States Government, the War

Department thereof, the Secretary of War, and the

Chief of Engineers have jurisdiction over the diver-

sion of waters from non-navigable tributaries of navi-

gable streams solely because such a diversion may re-

sult in the obstruction of the navigable capacity of

a navigable’stream into which, such non-navigable

stream may flow.

“(e) that it is the duty of the Secretary of War and

the Chief of Engineers to grant a permit for a diver-

sion from a non-navigable stream, unless such diver-

sion will result in an unreasonable obstruction of a

navigable stream or will unreasonably alter or modify

the capacity of the channel of a navigable water of

the United States.’

Connecticut Brief, p. 52:

The statement at the top of page 52, that Massachu-

setts has not accepted the recommendations of the War

Department and that the Metropolitan District Water

Supply Commission has not acted upon them, is directly

contrary, not only to the statements of counsel for Massa-

chusetts during the case, but also to the testimony of Dr.

Winsor, Chief Engineer of the Metropolitan District

Water Supply Commission, summarized at page 25 of the

Joint Summary of Evidence. This testimony was to the

effect that the “Metropolitan District Water Supply Com-

mission plans are being made in compliance with the War

Department decision; that he is not intending to go be-

yond the requirements of the War Department.” That

Massachusetts is bound by the War Department require-

ments is, of course, fundamental (see argument Original

Massachusetts Brief, pages 39-41).

VC RARE & ee. ane: wey -

Connecticut Brief, p. 53:

The argument of Connecticut, based upon figures of ¢

daily stream flow, discussed briefly by counsel for Con-

necticut at page 12 of their brief, and already commented

upon in this brief (supra, p. 4 et seq.), is repeated by coun- i

sel for Connecticut at page 53 of their brief (see Original

Massachusetts Brief, pp. 41-51, especially pp. 50-51). a

Connecticut Brief, p. 56:

The findings of the War Department have only a very

slight effect in modifying the amount of diversion by Mas-

sachusetts during periods of high flows on the Connecticut

River and on the Swift and Ware Rivers. The floods

usually occur during the spring or in the late fall, and so

the time restriction preventing any diversion at any time

from the Ware River during the period from June 15 to

October 15 is not generally applicable. The War Depart- :

ment was interested solely in protecting the very low :

stages of the river from material reduction in height. Even

during very high flows, the reduction in the height of the

river, due to the Massachusetts project, would have reached

as much as 6 inches (according to Complainant’s Exhibits

C-6, C-6A, and C-6B), only on two days during the period

of sixteen years of which adequate stream flow statis-

RPURR TOTES TI gee ~ mm

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Sa SUA :

tics are available. At times when the Hartford gauge

stands between 17 and 25 feet, the reduction in flow due

to the Massachusetts project, as shown by these exhibits,

probably would not average in excess of 4 inches.

Connecticut Brief, p. 61:

See discussion in the original Massachusetts brief, at

‘ rae ¢ eS be

pages 98 to 133.

Connecticut Brief, p. G2:

See discussion in original Massachusetts brief, at pages

121 to 133.

Connecticut Brief, p. G3:

With respect to the law which this Honorable Court

has said is applicable in interstate cases, like the case at

bar, see the original Massachusetts brief, at pages 98 to

121, especially 99 to 114.

Connecticut Brief, p. 4:

The statement (in the third whole paragraph on page

64 of the Connecticut brief) that Kansas recognized the

“appropriation” theory of water rights is incorrect. This

Court in Kansas v. Colorado, 206 U.S. 46, at page 103,

relied heavily on the decision of Clark v. Allman, 71 Kan.

206, citing and quoting Elliot v. Fitchburg R.R., 10 Cush.

191, at length, and applying in Kansas substantially the

Massachusetts rule of water rights.

Connecticut Brief, p. 82:

The comments on the War Department findings on the

first whole paragraph on page 82 of the Connecticut brief,

based upon the use of figures for particular days, instead

of weekly averages, should be considered in the light of

the argument contained in this brief (supra, p. 4). The

same material should be considered in connection with the

misleading statement that water is to be released from the

Swift River Reservoir only when the Hartfore gauge 1s

at 2.1 feet or lower. This incorrect statement is found at

the bottom of page 84, at the end of the top paragraph

at page 85, and in the first whole paragraphs on pages 86

and 87 of the Connecticut brief.

Connecticut Brief, p. 83:

The argument on the facts as to the navigable capacity

of the Connecticut River is answered in the original Mas-

sachusetts brief at page 41 ef seq.

Connecticut Brief, p. &7:

The Connecticut contention based upon the structures

which Massachusetts proposes to erect in the non-navi-

gable Swift and Ware Rivers, is fully answered in the

original Massachusetts brief at pages 90 to 92. It is sub-

mitted that the argument on the law beginning at page 92

of the Connecticut brief is fully answered by the argument

contained at pages 74 to 98 of the original Massachusetts

brief.

Connecticut Brief, p. 110:

As to the argument contained in the first paragraph

on this page. see the original Massachusetts brief, at pages

40, 83, and 84. As to the Connecticut contention contained

in the paragraph beginning at the bottom of page 110, see

original Massachusetts brief, pages 77 to 84.

Connecticut Brief, p. 111:

The contention contained in the first paragraph on this

page is discussed in original Massachusetts brief, pages

90 to 92.

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Connecticut Brief, p. 112:

The interpretation of section 10 of the River and Har-

bors Act of 1899 is discussed in the original Massachusetts

brief, pages 77 to 84.

Connecticut Brief, p. 115:

See original Massachusetts brief, page 90 et seq.

Connecticut Brief, pp. 117, 119:

Massachusetts makes no contention that rights, other

than those affecting the public interest in navigation, are

concluded by the War Department findings (see Original

Massachusetts Brief, pages 97-98). It has been argued

(Original Massachusetts Brief, page 41 et seq.) and the

Special Master has found (Rep. Sp. M. 12. through

19), that the proposed diversion will not injure navigation

in fact.

Connecticut Brief, p. 125:

The Connecticut argument on page 125, directed against

Professor Weston Fuller's testimony, with respect to the

value of the low flow releases from the proposed Swift

River Reservoir to the proposed power redevelopment at

King’s Island, should be answered briefly. Mr. Jacobs

testified (Joint Summary, p. 54) that the method of the

developing of the proposed King’s Island power project

would be to build a dam further down the river than the

present dam, thereby increasing not only the head of

water, but, of course, the amount of water available in the

pond behind the dam. The value of pondage for the pur-

pose of storing water over the week-ends in times of low

flow was testified to (Joint Sum. pp. 254-257) in most

striking terms by Mr. Uhl, a consulting engineer of broad

experience (see Joint Summary, p. xlvi). In water power

matters the purpose of pondage is, of course, to enable

the concentration of a maximum amount of flow into the

hours when it is most valuable. It is hard to see how any

reasonable prudent business man could possibly undertake

a water power development of the size of the suggested

King’s Island development unless a very considerable

pondage was in fact available.

There is nothing in the evidence to indicate that Pro-

fessor Fuller's assumption (quoted at the bottom of page

24 of the Connecticut brief), that sufficient pondage will

be available to allow the drawing of water at high rate,

is not correct.

A‘special instance, noted in the Connecticut brief, in the

paragraph beginning at the bottom of page 125, is some-

what misleading. ‘Though the records show that, on one

day, November 18, 1924, there would have been a varia-

tion from the average situation to be expected under the

War Department findings, none-the-less, during the whole

week in which that day occurred, there would have been an

average increase of 3 cubic feet per second due to releases

from the Swift River Reservoir; during the previous week

there would have been an average increase of 40 cubic feet

per second due to release from the Swift River Reservoir.

The effect of this average increase in the low flow of the

river, due to the releases from the Swift River Reservoir,

would, we submit, have been of advantage to the power

company because they would have had more water avail-

able to store in the pond. [The Massachusetts project

which, of course, was not in effect in November, 1924. ]

The necessity of taking into account average figures

over a short period of time, such as a week, rather than

figures for individual days, has already been discussed in

this reply brief (supra, p. +).

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Connecticut Brief, p. 130:

A casual reading of the first full paragraph on page

130 of the Connecticut brief would lead one to believe that

the damage to power of $80,000, found by the Special

Master (Rep. Sp. M. 21), was a recurring damage,

umounting to that sum in-each year. This, of course, is

not true. “The sum of $80,000 represented the capitalized

(at 5°" ) average annual damage to power of $7900, ad-

Justed for the credit representing the saving in capital in-

vestment due to the additional water at times of low flows

(because of the releases from the Swift River Reservoir

required under the War Department findings) [see Origi-

nal Massachusetts Brief, p. 63 et seq.].

Connecticut Brief, p. 131:

The argument of Massachusetts in support of the find-

ings of the Special Master, that agriculture in Connecticut

will not be seriously affected by the Massachusetts project,

will be found at page 57 et seq. of the original Massachu-

setts brief. Upon the conflicting evidence produced by

Connecticut from her own witnesses, the Special Master

has found that no substantial amount of injury will result

from the comparatively trivial diversion of flood waters

called for by the Massachusetts project (see Rep. Sp. M.

19-20). Assuming that, in a very small flood [the Hart-

ford gauge standing at 17], when there would be at least

25 feet of water in the river (Joint Sum. pp. 23-24, see p.

76), the Massachusetts project reduced the depth of the

river 4 inches (see Exhibit C-6, C-6A. C-6B), it would

reduce the depth of the river at Hartford only slightly

over 1% [4 inches out of 300 (25 feet) 4

Connecticut Brief, pp. 136-137:

Although upon the evidence there can be no doubt that

the spring floods do some benefit to the Connecticut hay

lands actually flooded, there was no convincing evidence

tending to show that any substantial amount of land would

not be flooded at all as the result of the Massachusetts proj-

ect. The missing link in the chain of Connecticut’s proof

on this point is the complete absence of any reliable evi-

dence showing that the diversion under the Massachusetts

project of a portion of the very high floods would result

in any material decrease in the amount of land actually

submerged.

Connecticut Brief, p. 138:

It is submitted that counsel for Connecticut are endeav-

oring to push the quotation from Georgia v. Tennessee

Copper Co. (206°U.S, 230, 237) to an unwarranted ex-

treme. That case involved a suit by a quasi-sovereign

state against a private corporation doing business in an-

other state. It was not in any sense a pure interstate case

like Kansas.v. Colorado, reported in the same volume of

the United States reports (206 U.S. 46). It is contended

that this Honorable Court has laid down, not only in Kan-

sas VY. Colorado but in other similar cases [see the Original

Massachusetts Brief, at page 106 et seq.], as the rule ap-

plicable to interstate cases like the case at bar, the doctrine

of “equality of right” or equitable division. It is sub-

mitted that the rights of one quasi-sovereign state in an

interstate stream are to be construed with reference to the

equal and corresponding rights of all other quasi-sovereign

states through which that stream passes. It is only rea-

sonable, in territory like the New England states, where

there are many congested urban areas, that each state inter-

ested in an interstate stream should be entitled under

present circumstances to use a reasonable proportion of the

waters of that stream for a domestic water supply in what-

ever portion of the state it desires, so long as it does not

so substantially diminish the volume of flow of the river as

GERBER RIES EI BIBS

to make it impossible for other states further downstream

to make a similar use of a portion of the remaining witters

(see Original Massachusetts Brief,-pp. 149-150).

Connecticut Brief, p. 140:

The arguments of Massachusetts in stipport of the find-

ing of the Special Master, that the decréase or increase of

the pollution of the Connecticut River due to the Massa-

chusetts project would not be material, will be found in the

original Massachusetts brief, af pages 52 to 57.

The statement in the first paragraph, under the heading

“Pollution,” on page 140 of the Connecticut brief. to the

effect that “the quantity of domestic sewage and industrial

waste which can be assimilated safely by any stream is in

direct proportion to the percentage of dissolved oxygen

in that stream,” is highly misleading. Two principal ele-

ments must be taken into account in determining the ca-

pacity of any stream to assimilate sewage at any given

point on the stream. These are (1) the dissolved oxygen

present in the stream at the point in question, which repre-

sents a capacity to dissolve sewage; (2) the oxygen obtain-

able from the air and from tributaries by the stream in its

progress to the sea from the point in question through re-

aeration. The process of re-aeration on the Connecticut

River is discussed at pages 54 to 55 of the original Massa-

chusetts brief. Exhibit D-15, quoted at length (infra, p.

41), shows that during the very dry month of August,

1929, the Connecticut River at the state line had a popula-

tion capacity [see, for definition of term “population ¢a-

pacity,” Original Massachusetts Brief, pp. 52-53] to take

care of the sewage of 368,000 people in addition to the peo-

ple and industrial plants furnishing the sewage and wastes,

of which the river was already taking care satisfactorily.

By the time the river had reached Rocky Hill, below Hart-

ford, and had received the whole sewage of the City of

Hartford (because of the process of re-aeration), the ca-

pacity to dispose of additional sewage and wastes had in-

creased to an ability to take care of the sewage of 816,000

more people than were then contributing sewage to the

river. Re-aeration therefore is a potent factor which must

be considered. It is neglected entirely in the first whole

paragraph under the heading “Pollution” on page 140 of

Connecticut’s brief.

Connecticut Brief, p. 142:

At the bottom of the page reference is made to Dr.

Winslow’s testimony (Joint Sum. p. 92) to the effect that

the Connecticut River at the state line, in the autumn of a

fairly average year, is on the border line of nuisance. Dr.

Winslow defines what he means by “border line” in his

testimony, summarized at page 89 of the Joint Summary

of the Evidence. In speaking about the first ten days of

September, 1929 [when incidentally, if the Massachusetts

project had been in effect, water would have been released

from storage in the Swift River Reservoir, increasing the

flow of the Connecticut River at the state line, see Exhibit

D-4], Dr. Winslow says “. . . certainly any substantial

removal of oxygen above that present [in the river] would

during a period such as this have pushed the thing over the

line, exhausted the oxygen completely and produced a real

nuisance.” More specifically (Joint Sum. p. 89. middle),

he says that the river “during that ten days was in a border

line condition and any substantial removal of oxygen or

water containing oxygen would have thrown it completelY

over the line.” (Italics ours.) It is apparent that in

order to change present conditions so as to produce a

nuisance there must be in Dr. Winslow’s opinion what he

calls ‘“‘substantial removal of oxygen or water containing

oxygen.” What he calls a “substantial” removal of water

containing oxygen is shown by the evidence quoted at page

90 of the Joint Summary of the Evidence and at pages 24

SS RST pend Se pat ery a

to 26 of the Report of the Special Master. Dr. Winslow,

in the passage there quoted, certainly does not regard ‘ny-

thing less than a 10°; diversion as important.

It is also significant that Dr. Winslow refers to the Con-

necticut River at the state line as being on the border line

of a nuisance in the “autumn of a fairly average year”

(Joint Sum. p. 92). Tle bases these conclusions on the

border line of nuisance on observations taken by him and

by Dr. Rudolfs in the summer and fall of 1929, especially

the first ten days of September. It is submitted that. the

summer of 1929 was an unusually dry period. [It was not

an “average” summer. From Exhibit I-36 one can obtain

the number of days in 1929 and the average of seventeen

years when the Hartford gauge stood at 2.0 feet or less

at lower low tide. The figures for the vear 1929 and the

average for the seventeen-year period shown on this exhibit

are as follows:

NUMBER OF DAYS WHEN THE HARTEFORD GAUGE STOOD AT 20 OR LESS.

Average of

129 17 years

July 14 10.7

August 29 15.8

September 27 16.7

October 27 11.3

November 20 6.7

‘Total number of days 117 61.2

While it may be true that the total amount of water

which flowed in the Connecticut River during the year

1929 “was very slightly below the average” (see Exhibit

D-4), the period July to November, during which the Con-

necticut analyses were made, could hardly be considered

slightly below the average dryness when the records show

that the Hartford gauge recorded 2.0 feet or less on 117

days, as compared with the seventeen-year average of the

same period of the year of 61.2, an excess of 91° over

the average.

On page 143, the second whole paragraph, the reference

to 1929 as slightly below the average here appears ex-

‘

pressly. It is submitted that our contentions above show

Connecticut's statement to be incorrect. Incidentally dur-

ing 19290 Exhibit 1-4 shows that there would have been

average weekly additions to the flow of the Connecticut

River during that summer continuously from July 22,

1929, through and including the week beginning October

14, 1929. "This period covers each of the individual days

mentioned in the second whole paragraph on page 143, on

which the Connecticut analyses found low figures of oxy-

gen saturation. Tfad the Massachusetts project been in

effect, the oxygen saturation would have been increased be-

‘ause of the discharge of additional water from the Swift

River Reservoir in accordance with the War Department

findings, although, as Dr. Winslow testified (Joint Sum.

p. 90), it would probably have been impossible to detect

the difference due to these increases or to diversion of a

similar amount had it taken place by any methods of

scientific analyses now known. ‘The comments above

(supra, p. 33) made as to what Dr. Winslow terms “bor-

der line of nuisance” are also applicable to the last para-

graph of page 143 of Connecticut's brief.

Connecticut Brief, p. 144

In view of the evidence of Dr. Winslow (quoted supra,

p. 33, in the Report of the Special Master, pages 24 to

28, and contained in the Joint Summary of the Evidence

between pages 89 and 95), it is submitted that the Special

Master was clearly right in finding that the Massachusetts

project as modified by the War Department findings will

not in any important way either decrease or increase the

pollution of the Connecticut River. The case at bar is

not a case brought to abate pollution of the Connecticut

~—

ton

River. If it were, Connecticut would not come into court

with clean hands (Rep. Sp. M. 23). ‘There is no evidence

that the stream has now become a nuisance, and, as we have

shown above (supra, p. 34), even Connecticut witnesses

testified that it will take at least a 10°) diversion, even in

very dry periods, to be detected.

Connecticut Brief, p. 145:

The second paragraph of page 145 of the Connecticut

brief gives rise to an inference that Connecticut made

observations daily and that Massachusetts made observa-

tions only once a month. As a matter of fact the Massa-

chusetts monthly averages were compiled from samples

taken in the following way: The observers employed by

the Metropolitan District Water Supply Commission took

samples on five days out of seven during the period from

the latter part of September, 1928, to the close of naviga-

tion on December 17, 1928, and again from the time the

ice went out in the early spring of 1929 until November,

1929, and during the balance of the time once or twice a

week. Whereas Connecticut took samples daily during

brief periods in 1928 and 1929, their work in general was

confined to one sampling a day at each station, whereas

Massachusetts sampling consisted of taking several sam-

ples at intervals of two hours (Joint Sum. pp. 121-122).

In all, experts employed by Massachusetts analyzed over

4000 samples taken from the Connecticut River (Joint

Sum. p. 123). It is true that the Massachusetts experts

employed monthly averages in their testimony. Dr. Ru-

dolfs confined his attention to particular days in which

conditions were at their worst [and during all of which,

if the Massachusetts project as modified by the War De-

partment findings had been in effect, there would have

been a release of additional water from the Swift River

Reservoir]. ‘The objective of the experts called by Massa-

chusetts was to get data of such reliability that it could be

employed in prognosis, and to do so it was necessary to

average a quantity of analytical material. While the data

have been applied in Exhibit D-14 to average stream con-

ditions during the period of the investigation, they can be

applied equally well to similar stream conditions during

any other yeyr.or period of time, For instance, the situa-

tion disclosed for August, 1929, would be expected on any

day or hour when the stream flow had the value that it had

during August, temperature conditions being similar. Ex-

ceptional variations from the average during individual

days in determining the effect of the Massachusetts diver-

sion upon the state of the river as regards pollution are of

slight importance, inasmuch as those individual days must

necessarily have been influenced very materially by special

conditions absolutely unconnected with the project. So

far as the project would have affected them, it would have

been by a tendency to decrease the intensity of pollution.

The comments made (supra, p. 34) with respect to

page 142 of the Connecticut brief, so far as it purported

to treat 1929 as an average year, are applicable to the

statements found not only in the fourth whole paragraph

on page 145, but also to the similar statements in the sec-

ond whole paragraph on page 156.

Connecticut Brief, p. 146:

There is no question that large sludge beds exist during

the dry seasons in the Connecticut River above the Massa-

chusetts state line. ‘The oxygen content of the water at

the state line represents the oxygen left in the river after

the effect of the sludge beds above that point in the river

has been exerted (see Joint Sum. p. 130). ‘To some extent

the sludge beds are a benefit to the river from the Connec-

ticut standpoint, as Mr. Robert Spurr Weston testified

(Joint Sum. p. 129). Since “while all the sludge beds

have an oxygen demand, they use up the oxygen more

slowly when they are on the bottom of the stream than if

they are suspended in the water...” He also pointed

out (Joint Sum. p. 129) that the formation of sludge beds

retards the amount of demand upon the oxygen in the river

which might be created lower down if the material in the

sludge beds were to go down stream during the summer

months. When the higher flow occurs, and some of. the

sludge beds are taken away by a freshet, they do no harm

because at such a freshet time there is plenty of water to

supply all the oxygen demand created by the beds. ‘There

was no evidence that the sludge beds gave off odors or

otherwise caused any nuisance, nor was there any evidence

as to the effect of the Massachusetts project, as modified

by- the War Department findings, upon formation of

sludge beds. The effect of that diversion is the issue in-

volved in this case.

Connecticut Brief, pp. 147 and 148: ‘

In discussing the subject of “bathing” on “water sup-

plies,” Connecticut introduced no evidence to show that

the effect of the Massachusetts project would be to alter

the present state of affairs in the Connecticut River for the

worse. Dr. Winslow, in particular, was most specific in

saying that a diversion or addition of water resulting in a

“change of 5 per cent either way was not of practical mo-

ment” (Joint Sum. p. 93). There. was no evidence, as

we have pointed out above, of a present intention on the

part of Connecticut to use the Connecticut River for a

water supply anywhere (see supra, p. 10). .

Connecticut Brief, p. 150:

Population capacity is defined accurately in the evidence

referred to at pages 52 to 53 of the original Massachusetts

brief. Population capacity is a scientific term used to ex-

press the ability of the stream at any given point, not only

to take care of the pollution which it then contains and to

carry it to the sea without the production of a nuisance,

but also its reserve capacity to take care of additional pel-

lution without creating a nuisance. Population capacity

thus is expressed in terms of the number of persons whose

sewage could be taken care of in addition to the sewage

already in the river at a given point. In the first para-

graph on page 152 counsel for Connecticut fall into error

when they say that if the population capacity is reached

“there is no oxygen left.” On the contrary, if the popula-

tion capacity of the river at the state line were at any time

reached, there would be enough oxygen in the river at the

state line to carry all the sewage then in the river safely to

the sea, regardless of any later re-aeration. The fact that

considerable re-aeration takes place between the state line

and a point below Hartford means that so long as the

population capacity at the state line is not exhausted [and

there is no evidence of any time when it has nearly been

exhausted] the Connecticut River in Connecticut will not

be a nuisance. In the third whole paragraph on page 152

it is stated that the present population equivalent load on

the Connecticut River at the state line is 619,000 people.

Of course the figure of 619,000 equivalent load above the

state line has already been included in the analytical deter-

minations upon which the population capacity (which is a

net figure above the present population equivalent load) of

the river at the state line is computed. This figure of popu-

lation equivalent load also includes all the pollution con-

tributed by Vermont and New Hampshire, which Dr. Ru-

dolfs said was so far upstream that by the time it reaches

the Massachusetts-Connecticut state lirfé it has all been

oxydized (Joint Sum. p. 106). In the second whole para-

graph of the Connecticut brief, on page 152, some figures

from Exhibit D-14 are printed. For the convenience of

the court Exhibits D-14 and D-15 are here printed in full.

ARIAS ranean aikall

Sch aa

Exuisit I-14.

Summary of Computations from Analytical Data Show-

ing Population Capacity of Connecticut River at State

Line, and Estimated Effect of Swift and Ware River

Diversions and Releases, as Authorized by the Massa-

chusetts Legislation and as Modified and Restricted by

the War Department Regulations.

POPULATION CAPACITY.

(1) (2) (3) 4)

C apac itv by

Release or

Capacity Diversion, Net Capacity %

at State Swift and at State % Change

Month Line Ware Rivers Line Change in Flow

1928 :

Oct. 3,987,000 —- 59,000 3.928.000 1.4 1.3

Nov. 7,004,000 —85,000 6.919.000 --1.2 ie

Dec. 8,603,000 135,000 8.468.000 -——-1.6 1.6

1929

Jan. 14,542,000 —327 000 14,215,000 ——2.2 2.2

Feb. 7,872,000 194.000 7.678.000 —2.5 2.7

Mar. 86,950,000 —2,175.000 84,775,000 ——2.5 2.8

April = 144,760,000) —-2,410,000 142,350,000 -1.7 —2,]

May 56,385,000 —-1,018,000 55,367,000 -1.8 2.0

June 2,368,000 —~—38,000 2.330.000 —1.6 —1.5

July 649,000 —6,000 645,000 —0.92 —0.62

Aug. 368,000 +5,000 373,000 +1.4 +0.90

Sept. 416,000 + 4,000 420,000 +£0.96 +0.75

Oct. 1,002,000 +8,000 1,010,000 +0.80 +£0.57

Nov. 3,488,000 —14,000 © 3.474,000) -—0.40 —0.30

Total 338,594,000 —6,444,000 331.950.000

Average 24,171,000 -——460,000 23,711,000 —1.9 —1.9

Note: Column (2) plus = release, minus = diversion.

Exuipitr D-15.

Showing Relative Population Capacities of the Connecti-

cut River at the State Line and Rocky Hill, Connecti-

cut, under conditions prevailing from October, 1928, to

November, 1929, inclusive.

POPULATION CAPACITY.

Year At At

and Sta. 1 Sta. 20

Month State Line Rocky Hill

1928

October 3,987,000 5,621,000

November 7.004,000 10,608,000

December

1929

8,603,000

12.250,000

January 14,542,000 23,250,000

February 7 872,000 14,559,000

March 86,950,000 238,720,000

April 144,760,000 4$42.380,000

May 56.385.000 121,210,000

June 2.368.000 3.929.000

July 649,000 1,409,000

August 368,000 816,000

September 416,000 1.000.000

October 1.002.000 2,476,000

November 3,488,000 6,223,000

Average increase for 14 months ==

It will be observed that at every critical period included

in the period covered by the exhibit (August, 1928, to

November, 1929) the Massachusetts project as modified

by the War Departnient findings, had it been in effect,

would have added to the population capacity of the Con-

necticut River at the Massachusetts-Connecticut state line.

Exhibit D-15 shows that at all times the population ca-

pacity at Rocky Hill, below Hartford, after receiving the

sewage of Hartford was greater than the population ca-

pacity at the state line. This is of course due to the rapid

re-aeration between the state line and a point just above

Hartford. An examination of Exhibit D-14 also shows

how grossly misleading are the statements in the paragraph

beginning at the bottom of page 152 and in the first whole

paragraph on page 153. It is of course true that in times

of very high flood, such as in April, 1929, the Massachu-

setts diversion, amounting to a 1.7°¢ change in population

capacity, would affect the population capacity of. the

stream by as much as 2,410,000 persons. However, at the

time that this change would have occurred the population

capacity of the Connecticut River at the state line was

144,760,000 people, a population capacity in excess of the

total population of the United States including Alaska and

the Insular Possessions [ Population of Continental United

States (1930) 122,775,046; estimated population of Alas-

ka and Insular Possessions (1928) 13,601,059]. The low-

est figure of population capacity shown on Exhibit D-14.

that of 368,000 in August, 1929, does not indicate any

serious condition. The river at the state line at that time

could have cared for the sewage of 368,000 more people,

and could have carried it safely to the sea without any al-

lowance whatsoever for re-aeration. However, re-aera-

tion would have exerted such an effect that population

capacity even after receiving the sewage of Hartford

would have been 816,000 at Rocky Hill.

Connecticut Brief, pp. 154-155:

The possible effect of the proposed new dam at King’s

Island is of course unknown. ‘The evidence was conflict-

ing, and properly so. The additional storage would

probably improve the bacteriological situation, and even

Dr. Rudolfs testified that the re-aeration would not be

reduced more than one half (Joint Sum. p- 115).

Connecticut Brief, p. 156:

The paragraph labelled “b. During high flow” contains

the same mistake as to the effect of the War Department

findings commented on supra, pp. 4-8. ‘There is absolutely

no evidence that the diversion during periods of high floods

will in any way remove or diminish the scouring effect

which the floods have upon the river. As to the comments

on sludge beds, see supra, p. 37. With respect to the last

paragraph on page 156, it is submitted that Dr. Winslow’s

statement, already referred to, as to complete inability by

analyses to detect changes caused by the removal of 5% of

the oxygen in the Connecticut River (Joint Sum. p. 90),

covers the whole case on pollution, inasmuch as no other

means of detection or observation can approach the sensi-

tivity or accuracy of chemical analyses. Computations on

Exhibit D-14 as to diversion from and additions to the flow

of the Connecticut River are computations purely as a

matter of mathematics.

Connecticut Brief, p. 158:

The statement at the bottom of the page, that the Spe-

cial Master found that there was no indication that the

policy of Massachusetts in permitting its streams to re-

main polluted will change, is completely in error. If he

had made such a finding it would have been in error (see

argument Original Massachusetts Briet, p. 56).

Connecticut Brief, p. 159:

The table of estimates introduced by Dr. Rudolfs as to

the probable state of the Connecticut River was based

upon conditions during an unusually dry summer like 1929

(during which the samples upon which Connecticut ex-

perts based their conclusions were taken). ‘This is ap-

parent from Dr. Rudolfs’ testimony (Joint Sum. p. 106).

As to the water policy of Connecticut as to pollution, see

Massachusetts brief, p. 56.

Connecticut Brief, p. 160:

General Wadhams did not testify that all the available

clean water resources of the state of Connecticut are al-

ready developed. There was no evidence that they were

(Joint Sum. p. 143, see supra, p. 10). It is significant

that General Wadhams testified that some Connecticut

streams are so polluted as to be absolutely hopeless so far

as cleaning them up is concerned (Joint Sum. pp. 148-

150).

Connecticut Brief, p. 162:

The argument of Massachusetts in support of the Spe-

cial Master’s findings that fish life will not be injured by

the Massachusetts project will be found in the original

Massachusetts brief, at pages 71 to 74.

Connecticut Brief, p. 166:

The criticism of Exhibit D-12 by Connecticut is unwar-

ranted. Dr. Winsor presented an analysis of certain

Connecticut exhibits purely for the purpose of showing

that they did not prove what counsel for Connecticut

claimed that they proved (see Joint Sum. p. 157). The

technique employed by Dr. Winsor to investigate whether

or not there was any correlation between May floods and

the shad run conformed to that commonly employed by

statisticians. Instead of confusing the issue it actually

results in the elimination from the problem of all the other

variable factors referred to by counsel, and shows in the

simplest possible way the entire lack of correlation between

the two variables under study, that is, the shad run and

the height of floods.

It is of course true that the waters between the Massa-

chusetts-Connecticut state line and the Enfield Dam are

in no way related to the shad industry, for it was in evi-

_-_

dence that the shad do not go above this dam (Joint Sum.

p. 153). Irom the undisputed testimony it appears that

all analyses of waters showing low dissolved oxygen con-

tent were of waters north of the Enfield Dam. Even with

respect to these waters there was no evidence that any of

the daily observers or investigators found any dead fish

whatsoever during continued warm weather. It would

be natural to suppose that, if the river became so bad as

to be unable to support fish life, the presence of large num-

bers of dead fish would come to the notice of competent

river observers.

Connecticut Brief, p. 173:

The argument of Massachusetts in support of the Spe-

cial Master’s finding that the available pure water sup-

plies in Eastern Massachusetts are inadequate for the

Metropolitan District about Boston, and for Northeastern

Massachusetts generally, will be found at pages 134 to

155 of the original Massachusetts brief.

The criteria given by Professor Winslow as to the ele-

ments to be taken into consideration in determining

whether water is available for use as domestic supply were

more technical, and less inclined to take account of human

weaknesses, than those of other experts called by Connecti-_

cut. The Special Master (Rep. Sp. M. 47) called atten-

tion to Dr. Winslow’s academic adherence to pure theory

as opposed to the reasonable consideration of practical

matters by the other experts who testified, all of whom had

had more direct contact with the construction and adminis-

tration of water supplies than Professor Winslow. The

uniform preference of all the other experts on both sides

for pure upland streams, rather than polluted waters, as

the original source of a water supply, leads one to suspect

that Professor Winslow has allowed his belief in the the-

oretical perfection of modern treatment methods to become

somewhat of an obsession [see Dr. Rudolfs’ testimony,

Joint Sum. p. 188, Dr. Gregory’s (called by C onnecticut),

Joint Sum. p. 199, Mr. Jacobs’, Joint Sum. p. 179; see also

the Gpinion of experts called by Massachusetts: Mr. Good-

nough, Joint Sum. p. 228 et seq., Mr. Howard, Joint Sum,

p. 234, Mr. Sullivan, Joint Sum. p. 236, Mr. oe

Joint Sum. pp. 252-254, Mr. Sanborn, Joint Sum. p. 2

Mr. Barbour, Joint Sum. p. 267, Mr. Weston Fuller

Joint Sum. p. 276, Mr. Eddy, Joint Sum. p. 288, Mr.

George Fuller, Joint Sum. p. 291, Mr. J. Waldo Smith.

Joint Sum. p. 299].

Connecticut Brief, p. 174:

The discussion of the legislative reports in the Connec-

ticut brief, p. 174 e¢ seq. should be compared with the dis-

cussion in the original Massachusetts brief, at page 34 et

seq.

Connecticut Brief, p. 175:

The quotation at the bottom of page 175 of the Connec-

ticut brief, from Exhibit C-3 (the 1895 Report), is mis-

leading because it is only a partial quotation. Immediately

following the statement quoted appears the following lan-

guage in the report:

“The estimated cost of filtering and conveying this

water to the metropolitan district is $17,500,000; but

in the opinion of the Board it will be better to pay 10

per cent. more for a supply from a source that has not

been polluted. The experiments carried on by this

Board for a succession of years at an experiment sta-

tion in Lawrence under the immediate direction of

H. F. Mills, C. E., a member of this Board, and the

filter constructed in connection with the water works

of that city, have shown that waters as polluted as those

——

of the Merrimack can be effectually filtered and ren-

dered safe for domestic use; but it is also true that fil-

tering areas require continuous care on the part of the

well-trained attendants, and that, in a few instances

at least, inefficient administration or inherent defects

of construction have allowed disease germs to pass

through filters which were assumed, by good author-

ity, to be a sufficient protection.”

‘See also the evidence of the Massachusetts experts

quoted at length by the Special Master, and obviously re-

lied upon by him (see Rep. Sp. M. 39-52).

Connecticut Brief, pp. 177-178:

The quotation from Exhibit C-1 at the bottom of page

177 is not, as one would assume from reading the Connecti-

cut brief, from the report of the Commission itself, but it is

a statement of an engineer employed by them. In the por-

tion of the report (Exhibit C-1, p. 16) written by the Com-

mission itself the following statement is made:

“The Assabet River was suggested in 1895 as the

source from which the first additional supply should

be taken, but the conditions have so changed mean-

time, due to the industrial development along the

course of the stream, that it will not be wise to consider

the use of this water as a possible regular source of

supply. Yet inasmuch as the aqueduct from the Wa-

chusett Reservoir passes through this watershed, the

Assabet water could be readily diverted into it and

used in case of a serious emergency. In fact, such

an available emergency supply is an asset which should

not be overlooked, as it will enable the district to fol-

low safely a somewhat more conservative policy in

regard to future extensions of the works than would

otherwise be the case.”

al cea Sa |

Similarly, the quotation from page 169 of the same report,

found at the bottom of page 178 and the top of page 179,

is incomplete in that it fails to include the following state-

ment from Exhibit C-1, pages 169 to 170, which seriously

modifies the effect of the passage quoted in the Connecti-

cut brief:

“The advisability, as a general policy, of limiting

the amount of water that may be diverted from the

rivers of the state so as to prevent serious diminution

of their flow, especially at times when the flow is

small, will hardly be questioned at the present time.

“With conditions as they now are, if water is to be

taken from streams in the Assabet watershed as pro-

posed, the taking should be a limited one” (see Ex-

hibit C-1, pp. 169-170).

This passage shows that only absolutely necessary atten-

tion was being given to the need of downstream communi-

ties for a minimum amount of water for dilution purposes.

Connecticut Brief, p. 180:

The passage quoted, at the top of page 180 of the Con-

necticut brief, from page 160 of Exhibit C-1, is followed

by several pages in that exhibit of various objections to

taking the waters of the Merrimack River. These objec-

tions are summarized by the engineer of the Commission

as follows (Exhibit C-1, pp. 162-163) :

“But the most important of all, the taking of water

from the Merrimack River would supply the Metro-

politan Water District from a polluted source which

is gradually and surely growing worse. The objec-

tions to this scheme in 1895 were summed up by the

chief engineer of the Board at that time, as follows:—

“ “Of these two plans, I have no hesitation in recom-

mending the one for taking water from the Nashua

River, mainly because I believe that the small ad-

vantage which the Merrimack River plan has in re-

gard to cost does not outweigh the disadvantage of

taking a water which requires purification to make it

suitable for drinking. Even if it were admitted that

sand filtration with scientifically constructed filters

and intelligent management will entirely remove dis-

ease germs from water, there is still the chance in the

administration of a work of this kind that the prepara-

tion may be unscientific and the management unintel-

ligent, which may cause the water to be either imper-

fectly purified by filtration, or, by accident, careless-

ness or the necessity of maintaining the supply, sent

to the Metropolitan District without any filtration

whatever. ‘There is another objection to the Merri-

mack scheme which I reggrd as of importance,—that

there is a greater danger that the supply may be in-

terrupted through some accident at the pumping sta-

tions or filter beds, or by a temporary failure of the

supply of coal or of skilled labor required to operate

the works...”

Regarding the use of the Merrimack River for a water

supply by the cities and towns in the Merrimack River

Valley (Exhibit C-]. p. 26). the Joint Board says:

“A report oe for us by Mr. H. W. Clark has

shown the feasibility of filtering the water of the Mer-

rimack River above Lowell, but there are sufficient

reasons against the use of this supply. At the present

time this is known by the attitude of the citizens of

Lawrence against their present supply taken from the

Merrimack River above that city. Even though the

water be rendered safe for use by the processes of

filtration and chlorination, the citizens have repeatedly

expressed repugnance against the use of a stream so

heavily polluted, when it is possible for another source

of supply to be obtained.”

The last sentence of the second quotation appearing on

page 180 of the Connecticut brief, suggesting that an al-

most inexhaustible supply of water for the Metropolitan

District would be furnished by the Merrimack River, js

clearly contradicted by the strong evidence of Mr. Ken-

nison (Joint Sum. p. 244), Mr. Barbour (Joint Sum. pp.

275-276), and Mr. Weston Fuller (Joint Sum. p. 273),

The fact that there is no adequate storage for the Merri-

mack River, the fact that restrictions of the War Depart-

ment may cut down the yield, and the essential require-

ments of downstream communities for a minimum amount

of water in dry seasons to dilute inevitable pollution, all

render the amount of yield to be obtained from the Merri-

mack River purely speculative. This subject is fully dis-

cussed in a brief tiled by Massachusetts before the Special

Master, copies of which are in the possession of the clerk

of this Honorable Court. [The brief referred to is bound

in green (see pages 110-120 thereof). ]

Connecticut Brief, p. 181:

The argument of counsel for Connecticut to the effect

that Massachusetts is reprehensible because water has been

wasted in the past because the Wachusett Reservoir was

not large enough to hold all that could have been obtained

from the watershed tributary to it is strangely inconsistent

with the argument of counsel for Connecticut that Massa-

chusetts is now proposing to build too large a reservoir on

the Swift River. One of these two arguments must fall.

The contentions in the Connecticut brief, at pages 181 to

183, are in themselves abundant proof that the Swift River

Reservoir should be made thoroughly adequate in size.

_—_

Connecticut Brief, pp. 185-186:

It is significant that Mr. Hazen, in the 1925 report (Ex-

hibit C-2; discussed in the Original Massachusetts Brief, at

page 38 et seq.), was forced to resort to a recommendation

of the Ware River flood waters in order to obtain an ade-

quate yield for the Metropolitan District of Boston. His

recommendation included a very large taking from the Ips-

wich River, which, as we have shown above (supra, p.

12), would only be a make-shift because of the future

needs of Essex County communities. The suggestion at

the top of page 180 of Connecticut’s brief, that Mr. Hazen’s

recommendation of a compensating reservoir on the Ware

River was for the purpose of maintaining the flow of the

Connecticut River, is absurd. The diversion of a few of

the upland waters of the Ware River would certainly have

had no appreciable effect upon the Connecticut River. The

purpose of the compensating reservoir was to benefit the

mills on the Ware and Chicopee Rivers. The attention of

the Court is called to the fact that the Massachusetts Legis-

lature rejected the recommendations of this report.

Connecticut Brief, p. 189:

As we have shown above (supra, pp. 11-12), the scheme

for obtaining a supply from the Merrimack, in conjunction

with the Ipswich, testified to by Mr. Kennison (Joint Sum.

p. 244), was introduced by him purely for the purpose of

meeting so far as possible obvious and serious objections

to the scheme which the Connecticut experts had been ad-

voeating and for the purpose of showing that, even were

these objections met, the best possible scheme for making

use of the waters of the Merrimack River would be an ex-

ceedingly bad and dangerous water supply scheme (Joint

Sum. p. 243 et seq.). Mr. Kennison perfectly obviously

regarded this scheme as a last resort for Metropolitan Bos-

TORT ERA x

NSA Son de RTD LESSEE AEE IS A IY

—

i) |

ton, and one to be utilized only under the most rigorous

compulsion.

Connecticut Brief, p. 190:

The suggestion in the Connecticut brief, in the last para-

graph on page 190, that the Knowles’ report is out of date,

is hardly true. It was brought up to date by Mr. Dooley’s

testimony (see Original Massachusetts Brief, p- 145; see

Joint Sum. pp. 232-233).

Connecticut Brief, p. 193:

The Lawrence supply, which is now taken from the Mer-

rimack River, is treated by slow sand filtration. That

method, which is exceedingly expensive, is apparently the

most satisfactory way of treating waters very heavily pol-

luted with industrial wastes. Mr. MecCarthy’s evidence

(see Joint Sum. p. 239) shows that a modern mechanical

(or gapid sand) filter on occasions would not work with

Merrimack River water. Despite the fact that the experi-

mental station had every device known to water purifica-

tion science at its disposal, there were long periods when

it was found impossible to filter Merrimack River water

because they were unable to obtain satisfactory coagula-

tion, an essential step in mechanical filtration. Mechanical

filtration was the method suggested by Connecticut ex-

perts for the proposed purification of the waters of. the

Merrimack River (see Joint Sum. p. 166).

Connecticut Brief, p. 196:

The tesiunony of Mr. Howard as to the policy in New

Hampshire makes it clear that there is no reasonable proba-

bility that New Hampshire will adopt a different policy of

protection and conservation of its streams in the near

future (Joint Sum. p. 234; compare Connecticut brief,

pp. 161-162).

_— aia e

Connecticut Brief, p. 197:

The intercepting sewers, referred to in the middle of

page 197 of the Connecticut brief, would of course have no

effect on improving the state of the Merrimack River, as

regards pollution at Tyng’s Island, above Lowell, the point

at which it was suggested by Connecticut that Boston

should obtain water from the Merrimack River. The

quoted statement of the Special Master (from page 45 of

his report) is directed to a consideration of the pollution

content of the water at Tyng’s Island and had nothing to

do with the water at any point nearer the sea than Tyng’s

Island.

Connecticut Brief, p. 198:

With reference to Mr. Eddy’s testimony, see the argu-

ments contained in the original Massachusetts brief, at

page 147.

Connecticut Brief, p. 199:

The evidence shows that the water power at Lawrence

and Lowell is significant “in comparison with the capacity

of” steam power plants at those points (see Joint Sum. p.

182). The installed steam power at Lawrence is approxi-

mately 75,000 horsepower, as compared with 25,000 horse-

power of installed water power. At Lowell the steam

power is only 25,000 horsepower, as compared with in-

stalled water power of nearly 30,000 horsepower.

Connecticut Brief, p. 203:

The statement at page 203 of the Connecticut brief, that

a sanitary survey of the Merrimack River rev sals nothing

in New Hampshire in the drainage area as far north as

Concord, New Hampshire, that would be objectionable or

impossible to treat, is erroneous. Beside the general testi-

Ni 9: GS ASRIBE . a

mony of Mr. Barbour quoted in the report of the Special

Master, pages 40 to 43, must be considered the testimony

of Mr. George Fuller (Joint Sum. p. 294) as to the dan-

gerous phenol and gas wastes at Manchester, and as to

the wood pulp mill at Lincoln. In addition to Mr. Kddy’s

striking testimony (summarized Massachusetts Brief, p.

146, Joint Sum. p. 278 et seq.) as to the industria] waste

content of the water at Tyng’s Island, there is the specific

testimony of Mr. Howard, Chief of the Division of Chem-

istry and Sanitation of the New Hampshire Board of

Health (found in the original transcript, though not set

out in full in the Joint Summary), as to the existence of

gas works and other manufacturing plants at Concord,

Nashua, and Manchester (see 'T ‘anscript, pp. 1687, 1688,

1689). ‘The difficulty of treating pulp and phenol wastes

is described by one of Connecticut’s own witnesses, Major

Whitman (Joint Sum. pp. 191-193), by Mr. George Ful-

ler (Joint Sum. p. 294), and by Mr. Barbour (Joint Sum.

pp. 262-264). Although Lincoln is north of Concord,

New Hampshire, the influence of the wastes from the pulp

mill in that town would make the filtration of Merrimack

River water at T'yng’s Island very difficult.

Connecticut Brief, p. 209:

It would seem that, instead of the modern trend of

water treatment being toward the adoption of the filtra-

tion of polluted waters, the modern trend was toward ob-

taining pure upland water sources wherever that Was pos-

sible. The situation in Albany was described by Mr.

Whitman, an engineer called by Connecticut (Joint Sum.

p. 193). We have mentioned (supra, p. 45) the prefer-

ence of all the experts except Professor Winslow for up-

land supplies wherever those are available [see especially

the testimony of Mr. Barbour at page 263 of the Joint

Summary of Evidence].

}9)

Connecticut Brief, pp. 216-217, 221:

As to the subject of the burden of proof, see the discus-

sion in the original Massachusetts brief, at page 151 et seq.

Connecticut Brief, p. 240:

In considering the reference, in the last paragraph of

this page of the Connecticut brief, as to the scheme put for-

ward by Mr. Kennison, see the argument, supra, p. 11.

Respectfully submitted,

JOSEPH EF. WARNER,

Attorney General of

Massachusetts.

BENTLEY W. WARREN,

Special Assistant Attorney

General.

GERALD J. CALLAHAN.

R. AMMI CUTTER.

SPases cca. MPL Pan RATER EER RC SN A hE INA PRRNPS

a Yue Sa ve 4

) le Se em Oe PB

MAY 1171930

CHARLES ELMORE CROPLEY E

FILE COPY a

Supreme Court of the United States

F a ’

No. &% Original, October Term, 1929.

STATE OF CONNECTICUT,

Complainant,

VS.

COMMONWEALTH OF MASSACHUSETTS,

Defendant.

REPORT OF CHARLES W. BUNN, SPECIAL MASTER.

i Mad RR a ae

Supreme Court of the United States

No. 13 Original, October Term, 1929.

STATE OF CONNECTICUT,

Complainant,

VS.

COMMONWEALTH OF MASSACHUSETTS,

Defendant.

REPORT OF CHARLES W. BUNN, SPECIAL MASTER.

December 2, 1929, the Court appointed the undersigned as Spe-

cial Master with power to summon witnesses, issue subpoenas,

and to take such testimony as might be introduced and such as

he might deem necessary to call. The Master was directed in

the order to make findings of fact and conclusions of law and

to submit the same to the Court with all convenient speed, to-

wether with his recommendations for a decree.

Accordingly the Master between February 18 and March 21,

1930, at Boston and at Hartford took such testimony as the

parties introduced and found no oceasion to call other wit-

NESSeS.

In accordance with said order the Master herewith presents

his findings of fact and conclusions of law with recommenda-

tions for a decree.

Sek aey aa |

Ra AS

ti dootby shih a9

ee ee

GENERAL FACTS.

The bill was filed by the State of Connecticut seeking to en

join the Commonwealth of Massachusetts from diverting for

Boston water supply a part of the waters of the Ware and

Swift rivers. These streams are unnavigable tributaries of the

Chicopee river, itself a non-aavigable tributary of the Connee

ticut discharging into that river just above Springtield, and

are situated wholly within Massachusetts.

The project is to take certain waters from the Ware river

and from the Swift river and to establish eventually a large

reservoir on the Swift. These waters are to be led through a

conduit into the Wachusett reservoir, the present main source

of water supply for Boston and neighboring towns and cities,

A few miles ielow Springfield the Connecticut river enters Con-

necticut and flows in a southerly direction to heme Island

sound. Lou

The Connecticut rises in Canada and northern New Hamp

shire, flows southward between New Hampshire and Vermont

and through Massachusetts. It is the largest river in New Eng:

land, being about 345 miles long and draining an area of 11,300

square miles, of which 1.385 are within Connecticut.

Boston and the surrounding metropolitan area are faced with

a serious water shortage in the near future and there is a real

necessity for their making provision for a large quantity. of

additional water which will meet the needs of the region for

a considerable number of years. The metropolitan area con

sists of 20 cities and towns, and 15 other cities and towns are

eligible to become members; these 35 cities and towns have a

population of about 1,960,000. Other gities/and towns must be

considered in intimate connection with the Metropolitan Dis

trict, because first they are likely to \ depend on District

water supplies at some future time, and secondly as wii] later

cal besicscancerien

A ards tr nis aad

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Tow7s pow 17 Metrapoiitan Water Ostet (Fs OUR (

Tm 9 welten /C ~vles of State House é give bit ,

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~ BOSTON

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COMMONWEALTH OF MASSACHUSETTS ~ METQ. DISTR. WATER SUPPLY COMMISSION

MAP SHOWING GROUPS OF NORTHEASTERN MASSACHUSETTS

CITIES AND TOWNS REFERRED TO IN EXHIBITS D-I3, 0-33, D-34 AND D-35.

(BASED UPON MATERIAL FOUND ON EXHIBIT O-I3ee)

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APRA. 7. 1930

appear, if Ware and Swift waters be denied to Boston, all

populations in the northeastern part of the state must divide

up water supplies on a fair principle of equality of right. In

this view the needs of the population of northeastern Massa-

chusetts taken as a whole must be considered; insert opposite

this page shows the territory. The total population thus con-

cerned is now 2,860,000, estimated likely to reach a total in 40

vears of 4,572,000. This whole region has a total present water

supply of 343,000,000 gallons per day and a total consumption

of 244,000,000 gallons per day, leaving a surplus of 99,000,000

per day. But use of water is increasing and population is in-

creasing. Dry seasons have occurred when the Metropolitan

District has been imminently close to water shortage. In 1970

owing to disuse of some of them the present supplies will prob-

ably have decreased from 343,000,000 to 289,000,000 gallons per

day and the consumption requirements will probably have in-

creased from 244,000,000 to 467,000,000 gallons per day, leav-

ing a deficit of 178,000,000 gallons per day.

There is no serious dispute about the need of this region to

provide preseatly for additional water.

Speaking in a general way this is the situation which led the

Massachusetts legislature to provide for securing a water sup

ply from the Ware and Swift rivers. It passed the act of 1926,

¢. 375, and that of 1927, c. 321, which are printed in defend-

ant’s reprint of answer p. 36-80. The plan of these laws was

diversion into Wachusett reservoir (the principal present sup-

My of Boston), of (a) flood waters of the Ware river (act of

26). and (b) certain waters of the Swift river (act of ’27).

Because of possible etfect of the proposed Ware and Swift

works upon navigation of the Connecticut, Massachusetts ap

plied to the Secretary of War under the act of Congress of

March 3, 1889, ch. 425, see. 10, for authority to divert Ware and

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Swift waters as proposed. The Secretary of War after hearing

both sides and examining the facts made a finding that the pro

posed diversion of the Ware river “will have no adverse etfect

on the navigable capacity of the Connecticut River” (reprint

of answer p. 81-87). He also found that no impairment of the

navigable capacity of the Connecticut would result from the

diversion which his order permitted from the Swift river. The

Secretary determined that no objection would be interposed hy

the War Department to these diversions. He permitted diver

sion of flood waters of the Ware in excess of 85,000,000 o:l-

lons per day between October 15 and June 15 and prohibited

the taking of any water whatsoever except during that period.

He permitted diversion of all waters of the Swift except enough

to maintain a flow of 20,060,000) per day. but required dur-

ing the period June 1 to November 30, both inclusive, relense

of 110 cubic feet per second (71,000,000 gallons a day) from the

impounding dam on the Swift river whenever the tlow of the

Connecticut at Sunderland, Massachusetts (a town about 20

miles north of the confluence of the Chicopee and Connecticut |,

is 4650 cubic feet per second or less; and when the flow of the

Connecticut river is more than 4650 and less than 4900 cubic

feet per second 70 cubic feet per second (¢ £5,000,000 villous a

day) he required to be released. The Secretary found that

discharge of 4900 cubic feet per second at Sunderland cor-

responds to an average gauge height at Harrford of 2.1 feet and

a discharge of 4650 cubic feet per second at Sunderland meaus

2 feet gauge height at Hartford. 4

The annual flow of Connecticut river at the Massachu-

setts-Connecticut boundary is about 17,000 cubic. feet per sec

ond (approximately 11,000 millions gallons a day); total water

shed of Connecticut river 11,300 sq. miles, and watershed lying

above Massachusetts-Connecticut boundary 9.915 sq. miles;

drainage area of Connecticut river watershed in Connecticut

L385 sq. miles; drainage of Ware river at point of diversion

Qs sy. niles; drainage of Swift river at point of diversion 186

sq. miles.

Diversions of the Ware and Swift as permitted by the Sec-

retary of War will furnish about 191,000,000 gallons of water

per day. The Massachusetts acts do not authorize diversion of

any waters other than the Ware and Swift, and as to these the

record shows that (as far as Counsel can commit it) Massa-

chusetts proposes to abide by the Secretary of War's require-

ments and restrictions touching the diversion.

The total drainage area of both the Ware and Swift subject

to diversion is 2.93 per cent of the total watershed of Connec-

ticut river above Connecticut. Diversion of water to the extent

authorized by the Secretary of War represents an average

yearly subtraction from the tlow of the Connecticut at the state

line of about 2 per cent; but 94 per cent of this diversion occurs

when the Hartford gauge reads above 3!. feet, which means

131. feet depth of water. Two feet on the Hartford gauge in-

dicates 10 feet of water, which is the depth the government

heretofore has sought to maintain below Hartford. But a War

Department project contemplates a future 12-foot channel and

nearly all the diversion proposed will be when there is more

than that depth of water.

Many maps were introduced in evidence. Attached hereto

will be found a map of convenient size sufficient for a clear un-

derstanding of most features of the case.

The complaint of Connecticut for an injunction against the

proposed diversion is grounded on the allegation that any sub-

traction from the flow of the Connecticut through that state is

a’ serious damage to the state and its people in that (a) it in-

jures the navigability of the stream, (b) certain lands in the

Connecticut river bottom subject to yearly inundation will be

injured by diminution of such inundation, (¢) probability of a

power deveiopment at King’s Island, a few miles below the Mas’

sachusetts-Connecticut line, and the proposed diversion would

diminish this power, (d) the run of shad is favored by high

spring floods and the proposed diminution of these will seri-

ously diminish this run, (e) the Connecticut river is a carrier

of sewage from population and waste from factories, and

diminution of the flow will decrease the capacity of the river

to discharge and destroy this pollution. Much testimony was

taken upon each of the foregoing topics.

In actuation Connecticut alleges by an amendment to its bill

that the Boston district can well be supplied with good water

from the eastern part of Massachusetts and for this reason

should be enjoined from subtracting in the least from flow of

water into the Connecticut. A large amount of testimony was

taken upon this subject.

PRELIMINARY QUESTIONS OF LAW.

Before taking up the specific grounds for relief above stated

it will be convenient to consider a general contention which

Connecticut pressed earnestly upon the argument. That con

tention is first that any invasion of the rights or privileges of

a sovereign state calls for injunction regardless of damage, and

even though not the slightest actual damage results; second

that the Supreme Court in a suit between two states will apply

the law of the states rather than any rule of its own; and that

consequently, where both states have adopted the common law

of riparian rights, the Supreme Court of the United States has

nothing to do but to apply the strict rule of the common law

in determining such a controversy as this.

_—

Regarding the first branch of the contention it ignores that

injunction is not granted where there is an adequate remedy

at law; and also it seems to me directly in the teeth of the cases

of Missouri v. Illinois, 200 U.S. 496, 521; New York v. New

Jersey, 256 U.S. 296, 309; and North Dakota v. Minnesota, 263

U.S. 365, 374. In the latter case the court said:

“In such action by one state against another, the burden

on the complainant state of sustaining the allegations of its

complaint is much greater than that imposed upon a com-

plainant in an ordinary suit between private parties. ‘Be-

fore this court can be moved to exercise its extraordinary

power under the Constitution to control the conduct of one

state at the suit of another, the threatened invasion of

rights must be of serigus magnitude and it must be estab-

lished by clear and convincing evidence. New York v.

New Jersey, 256 U. S. 296, 309; Missouri v. [llinois, 200

U. S. 496, 521.”

I think equally unsound is the contention that the Supreme

Court in a suit between two sfates which recognize the com-

mon law is confined to rules sanctioned by common law.

The case of Kansas v. Colorado, 206 U. 8. 46, at p. 97, shows

that the court in deciding suits between states follows primar-

ily international law. The court there quoting Mr. Justice

Gray declared that international law is a part of our law and

must be administered when rights depending upon it are pre

sented for determination. Chief Justice Fuller’s language in

185 U. S. 146, is also quoted with approval:

“Sitting, as it were, as an international, as well as a

domestic tribunal, we apply federal law, state law, and in-

ternational law, as the exigencies of the particular case

may demand.”

In Acmsas v. Colorado one state had adopted the common

law, and the other state applied the principle of priority of

io fF

appropriation in determining water rights. The cardinal rule

between states claiming rights in interstate rivers is shown

both by Aansas vr. Colorado (p. 94-96) and Wyoming v. Color.

ado, 259 UL S. 419, 464-5, to be equality of right; that the effect

on both states of what is done in one state must be considered

so that both states may secure as far as possible equality of

right in use of the water.

In the former case the court said p. 100:

“Suppose the controversy was between two individuals,

upper and lower riparian owners on a little stream with

recky bank and rocky bottom. The question properly

might be limited to the single one of the diminution of the

flow by the upper riparian proprietor. The lower ripar-

ian proprietor might insist that he was entitled to the full,

undiminished and unpolluted tlow of the water of the

stream as it had been wont to run. It would not be a de-

fense on the part of the upper riparian proprietor that by

the use to which he had appropriated the water he had

henefited the lower proprietor, or that the latter had re-

ceived in any other respects an equivalent. The question

would be one of legal right, narrowed to place, amount of

tlow and freedom from pollution.”

The court held that quite a diiferent rule applied to

suits between states within its original jurisdiction; that the

cardinal rule as between states is equality of right, saying

that the question should be viewed not narrowly and solely as

to the amount of flow in the Arkansas river, inquiring merely

whether any portion thereof was appropriated by Colorado, but

rather to determine how much Colorado might fairly appropri

ate under the rule of equality and the effect of such appropria

tion upon the lower state. The court awarded to the upper

state the use of a very large share of the water. In reaching

this conclusion the court adopted its own rule of international

—

eta

law. In each international case as it arises L think the Su-

preme Court will adopt that rule of law which best works out

equality and equity in the particular case. The result reached

in Kansas v. Colorado it seems to me would not have been dif-

ferent whether Kansas recognized to a certain extent appropri-

ation rights in water or not.

A similar comment seems to me sound on Wyoming v. Color-

ado. Whilst it is true that in that case the court took pains to

show that each state recognized prior appropriation of water,

I think essentially it enforced that rule because it is the only

just rule applicable to an arid country where irrigation is the

first essential. The inquiry into state law was pertinent be-

cause the Supreme Court does not impose upon a state any

particular system of law.

The Chicago Drainage case seems to me an authority upon

this point. The court there in the final decree allowed a diver-

sion estimated to reduce the level of the Great Lakes about one

inch, and this diversion was into another watershed and to a

sen several thousand miles from the mouth of the St. Lawrence.

Illinois and I apprehend Canada and most of the states tribu-

tary to the Great Lakes follow the common law, and I under-

stand that common law doctrine was urged in that case as pro-

hibiting diversion to another watershed.

It was put te counsel for Connecticut on the argument

whether the quantity of water sought to be diverted might be

taken out and used for domestic purposes in Massachusetts if

the population using it were in the Ware and Swift watershed.

Counsel said such use would be lawful because it would be

riparian and contended that by the common law water could

not be diverted for domestic use outside the watershed. The

contention on behalf of Connecticut was distinct that not one

drop of water could be taken from the Ware or Swift for use

beyond the watershed.

In the first place it seems to be doubtful if there is any such

absolute and rigid rule of the common law. I think cases may

be put where that would not be the rule, for example where

the diversion causes no damage as where there is enough water

for all. But whether there be such a universal principle or

not, certain it is that Massachusetts has a right to change her

common law, and by the legislation in question, so far as her

power extends, she legalized the proposed diversion. I think it

‘cannot be maintained that Connecticut has any vested right to

insist that Masshchusetts must continue common law rules as

originally introduced from England.

This was the ete in the case of United States v. Rio Grande

Trrigation Co., 174 U. S. 690, p. 702, where the court said:

“While this is undoubted, and the rule obtains in those

States in the Union which have simply adopted the com-

mon law, it is also true that as to every stream within its

dominion a State may change this common law rule and

permit the appropriation of the flowing waters for such

purposes as it deems wise. Whether this power to change

the common law rule and permit any specific and separate

appropriation of the waters of a stream belongs also to the

legislature of a Territory, we do not deem it necessary for

the purposes of this case to inquire. We concede arquendo

that it does.

Although this power of changing the common law rule

as to streams within its dominion undoubtedly belongs to

each State, yet two limitations must be recognized: First,

that in the absence of specific authority from Congress a

State cannot by its legislation destroy the right of the

United States, as the owner of lands bordering on a stream,

to the continued flow of its waters; so far at least as may

be necessary for the beneficial uses of the government prop-

erty. Second, that it is limited by the superior power of

the General Government to secure the uninterrupted navi-

gability of all navigable streams within the limits of the

United States.”

The case of Kansas v. Colorado, pp. 94-96, sustains the same

rule that each state may decide for itself what law of riparian

rights it will apply, and that federal authority will not enforce

any particular rule upon any state; that while it is undoubt-

edly true that early settlers brought to this country the com

mon law of England, it is for-the states to pass their own laws

and Congress does not impose upon the states any particular

rule.

In Wyoming v. Colorado, 259 U. 8S. 419, one of the grounds

urged by Wyoming was that Colorado could not rightfully take

the water into another watershed. The court, following the

controlling principle that the river throughout its course was

to be looked at as a single stream wherein each state had an.

equal interest, rejected the contention that Colorado could not

divert water into another watershed, but said the fact of diver-

sion into another watershed had a bearing in another connec-

tion, which I take to mean in determining whether the diver-

siof proposed is reasonable and consistent with equality of

right.

In that case to secure equality of right the court permitted

Colorado to divert for irrigation in another watershed. I see

no reason why the same principle should not apply here, pro-

vided only the diversion of water is reasonable and no more

than consisten. with Connecticut’s equality of right. If

Massachusetts would have a right to abstract this much water

under any system of lay, she might follow and for any use

legal by that system, I cannot see that Connecticut has a better

right merely because she and Massachusetts adopted the com-

mon law of England. Si

For the foregoing reasons I feel constrained to 1 against

any right of Connecticut to object to the diversion rdless.

—

of damage to the Connecticut river. I think the principle to

be applied is equality of right, and the particular inquiry is

Whether the proposed diversion will seriously and substantially

cripple the flow of, or otherwise injure, the Connecticut river.

If abstraction of the proposed quantity of water will not work

a serious injury to Connecticut it seems to me immaterial

Whether that water be taken for use bevond the watershed or

not. The mere question of right to take it bevond the water-

shed is one for Massachusetts, subject to the right of Connecti-

cut to say that nothing can be done to Connecticut river waters

Within Massachusetts which will largely injure that river in

Connecticut.

In other words I think the case upon this branch resolves

itself into a question of fact as to the effect of the proposed

diversion, and that this question of fact must be passed on with

due regard to the established rule that the proof must show

clearly and convincingly a very substantial damage in order to

call for injunction. y

I now take up the particulars in which Conneetieut claims

substantial damage to the flow or quality of the Connecticut

river.

NAVIGATION-— AS TO THE LAW.

It is shown by the testimony offered by Connecticut and is

found that a substantial commerce is carried on between Hart:

ford and New York (and neighboring ports). both passenger

business and freight business largely coal and oil, Regular

lines of boats ply in this commerce between Hartford and New

York and its neighborhood. The Connecticut river has long

been treated by the United States as navigable from Hartford

tothe sea. An annual expenditure for years has been made by

the United States in preserving and bettering this navigation.

The aim of the United States has been to maintain a minimum

10-foot channel. The difficulties to be overcome consist of a

number of bars which form annually in the river between

Hartford awd the Sound. Annually these bars have been

dredged by the United States, this work being designed to

maintain substantially a minimum 10-foot channel.

From Hartford up river as far as Holyoke small boats ply

and carry a small business. There is a possibility of a large

dam for power at a point a few miles south of the Connecticut

line near the Windsor locks, and this dam, if built, would im-

prove navigability between Hartford and Helvoke. -

The Secretary of War as before stated made orders modifying

and reducing the diversion of Ware and Swift water which

would have been possible under the Massachusetts legislation.

He finds that the diversion specified by him would not injure

appreciably Connecticut navigation. But in view of this con-

troversy-then pending the Secretary said he issued no affirma-

tive formal permit, simply determining that the United States

would interpose no objection to thediversion. He required a

discharge from the Swift river reservoir during the critical

period of low water, which would increase instead of diminish

the flow of water in the Connecticut, and to that extent better

navigation.

In other words the Secretary consented on behalf of the

United States to both the Ware and Swift diversion specified

by him, but his order instead of being an affirmative license was

of a negative character to the effect that the United States did

not object. It seems to me his finding that the permitted diver-

sion would not injure appreciably Connecticut navigation is

conclusive if the action is within his authority. If Congress it-

——

self should fix the stage of water in the Connecticut adequate

for navigation it would be conclusive and no state would be

heard to contend in favor of a deeper, or shallower, ora ditlerent

channel. Pennsylvania v. Wheeling Bridge Co., 18 How. 421,

430; South Carolina v. Georgia, 93 U.S. 4, 11-12; Willer y.

Mayor, 109 U.S. 385, 393-395; Monogahela Bridge Co. v. United

Ntates, 216 U. S. 177, 195: Phifadelphia Co. v. Ntimeon, 20

U.S. 605, 635; Uniied States vr. Chandler-Dunbar Co., 229 U. s.

98, 63-65; Southern Pacific Co. vr. Olympian Dredging Co., 260

U.S. 205, 208-210.

In VWonogahela Bridge Co. rv. United States, 216UL 8. at p. 195

the court said:

“It was not for the jury to weigh the evidence and de

termine according to their judgment. as to what the necessi-

ties of navigation required, or whether the bridge was an

unreasonable obstruction. The jury might have differed

from the Secretary. That was immaterial: for (‘ongress

intended by its legisiation to give the sume force and effect

to the decision of the Secretary of War that world have

been accorded to direct aetion by it on the stbject. It is

for Congress, under the Constitution. to regulate the right

of navigation by all appropriate means, to declare what is

necessary fo be done in order to free navigation from ob-

struction, and to preseribe the way in which the question

Of obstruction shall be determined. Its action in the prene

ises cannot be revised or ignored by the courts or by juries,

except that when it provides for an investigation of the

facts, upon notice and after hearing, befuge tinal action is

taken, the courts can see to it that executive officers con-

form their action to the mode prescribed by Congress ~

In United Ntates vo Chandler-Dunbar Co., on p. 6b the court

said: ~?

“So unfettered is this control of Congress over the navi-

gable streams of the country that its judgment as to

whether a construction in or over such a river is or is not

an obstacle and a hindrance to navigation, is conclusive.

Such judgment and determination is the exercise of legis-

lative power in respect of a subject wholly within its con-

trol.”

The field of regulating navigation was left open to the states

for many years by failure of Congress to act. See Willson v.

Black Bird Creek Marsh Co., 2 Pet. 245; Escanaba v. Chicago,

107,U. S. p. 678. But by the act of 1899 Congress seems very

completely to have taken jurisdiction of everything pertaining

to navigation. The rule is too well settled to admit of argu-

mentethat whenever Congress enters a field originally common

to federal and state law it thereby excludes state action within

that field. Sherlock v. Alling, 98 UL S. 99; Chicago, R. 1. & P.

-R. Co. ve. Hardwick Farmers Elevator Co., 226 U. 8. 426; Mis-

xourt PR. Co. rv. Stroud, 267 U.S. 404.

It was suggested on behalf of Connecticut that the Secretary

could not lawfully consent to diversion of water for domestic

use, any more than he could for carrying off Chicago sewage,

wee Wisconsin vr. [linois, 278 UL S. 367, p. 400. and Sanitary

District v. United States, 266 U.S. 405, pp. 429-430. The

secretaries who granted the permits for diversion at Chicago

never found that the diversion would not affect navigation,

On the contrary it seems plain that both Secretaries recognized

that the diversion would damage navigation (266 U.S. p. 430).

The permits in that case were made temporary in view of the

pending litigation and left undetermined to be decided in the

litigtion the effect of the diversion upon the height of water in

the lakes. The court and master found that navigation was

seriously injured by the diversion. What the court then held

was that the Secretary had no right under Sec. 10 act of 1899

to divert water needed) for navigation, merely to carry off

PRA S80 ME ANA SR RN

Chicago's sewage. Llere on the contrary the Secretary alter

hearing of both sides has found that the diversion will not

injure navigation; indeed he requires a discharge which will

improve navigation at stages of lowest water; and concludes

that the United States will interpose no objection,

The case of Wisconsin vo Illinois (see Maine Water Co. rv,

Anickerbocker Steam Towayge Co., 9 Me. 473, therein ap-

proved) determines that the phrase ‘affirmatively authorized

by Congress”. in See 10) means authorized through the au

thority in that section delegated to the Secretary of War, And

this was the practical interpretation of the statute by other

vovernmental departments referred to by Chief Justice Taft.

IL think it cannot be maintained that every structure in order

to come within Sec. LO must be one purely for the purpose of

aiding navigation. The language of the section negatives this,

It authorizes the Secretary to consent to any “obstruction” de

seribed. Tt mentions any wharf, pier, dolphin, boom. weit,

breakwater. bubkheccd, etry, oF other structure, ete., outside

established harbor lines os where no harbor lines hive been

established, and it imeludes as it seems to die datas and other

obstroctions and diversions in tributaries of mavigabhe Waters

Which may affect navigability. Tt seems to me the Secretary

under See. 10 may agithorize a dam ona tributary upen finding

that it would not injure navigation. Tle might license such

dams for power, boating, propagating fish, ete. ete. The act

prohibits unreasonable obstruction to navigation (27s oS.

413) and the Secretary is authorized to determine for Con

gress what obstructions are unreasonable, Works on un

navigable trilutaries of navigable waters are subject te the

paramount rights of the United States over navigation, and the

Secretary has jurisdiction over such structures, ( nifed states

r. Rio Grande Irrigation Co. WA VOSS. 690) pp) TOT 709,

| think the test of validity to be applied to an authorization

by the Secretary is whether the matter involved is germane to

navigation, Whether it has relation to that subject. Even Con- 4

eress has ne right to destroy navigable capacity and the prin-

ciple Which applies to the Secretary is the same which applies

to Congress, Viz: thet his act must have relation to the control

of navigation. This was the test stated by the court in Wiscon-

sin v. Illinois, 278 US... p. 415. Ido not think it can be main-

tained that every work referred to in Sec. 10 must be one whose

sole design is to aid navigation. The Sccretary is given juris-

diction over the whole range of structures and works [except

those named in Sec. 9). from those designed solely to improve

navigation to those like dams, looms, weirs, ete., ete., not de-.

signed to better navigation and which may or may not injure

it. A large part of the function of the Secretary is to deter-

mine Whether the structures last referred to injure navigation

materially and to license them or not according to his deter-

mination. Tt seems to me that the determinations of the See-

retary within this range are authorized by Sec. 10 and so au-

thorized by Congress,

Moreover it is to be noted that the works authorized are to a

certain extent in direct aid of navigation. The testimony shows

that the eritieal period of navigation is Guring extreme low

water and the Secretary's permit is on condition that water be

added to the stream during that period. The proof shows

that from 1913 to 1929 inclusive the Swift river reservoir, oper-

ated as required by the Secretary, would have increased the flow

of the Connecticut 43.5 days during each vear on the average,

the number of days varving from 110 in 1913 to zero in 1922

and 192s, the last two being vears of unusually high water.

NAVIGATION—PFINDINGS AS TO.

On the possibility however of the Secretary's permit being

held inconclusive | will consider the testimony on navigability

contained in the record. This consideration does not need to

be lengthy. The substance of the testimony as to the commerce

carried on has been indicated. The United States has aimed

tO maintain a channel of 10 feet over the numerous bars below

Hartford. These have to be dredged out every vear and the

Witnesses, who ware shippers and masters of vessels in the trade,

are in entire agreement in their tory of difficulties at the low.

est stages of water, when the depth on the bars at times falls

even below LO feet. This depth is considerably influenced also

by the winds and tides as well as by the stage of water. There

is no proof of difficulty in navigation at times when the stage

of water is 12 feet or even LL feet. EL corresponding to an in

dication on the Hartford gauge of 3 feet. The discharge re

quired from the Swift river reservoir during low water periods

will somewhat benetit navigation. To cannot see how the di-

Version can injure navigation and therefore find that the pro

posed diversions will not interfere percepribly or materially

with the navigation of the Connecticut.

The proposed subtractions and additions to Connecticut river

How are shown in a large graph covering by weeks the whole

period from 1913 to L929 inclusive, defendant's exhibit 4. It

was accepted as substantially correct by both parties and by

all the witghesses Each of the columns on the graph ind

cates a weekiy flow of the Connecticut at the Massachusetts

Connecticut state line, (hat is an average flow expressed in

cubie feet per second during the week shown at the foot of the

chart. A solid white seefion at the bead of a column. scales

the amount of water that wid have been diverted during that

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ss mmoninto ey MASS. LEGISLATION wanes & WAR DEPARTMENT

COMMONWEALTH OF MASSACHUSETTS ~ METR. OISTR. WATER SUDDLY COMMISSION

RELATION » AUTHORIZED DIVERSIONS "0 n« FLOW o ™< CONNECTICUT RIVER WET YEAR 1928

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week from the Ware and Swift rivers under the Secretary of

War's regulations. A solid line at the head of a column shows

very slight diversion, too small to be indicated on a chart of

this scale, while a dotted line at the head of a column means

additions to a normal flow by release of water impounded in

the Swift reservoir. To illustrate the showing of this graph

I insert opposite this page a section of the graph for the dry

year 1923 and one for the wet year 1928. The average proposed

diversion of water per annum is agreed to be substantially two

per cent of the flow of the Connecticut at the state line. The

maximum diversions are at high water and amount to from

5 to 6 inches, that is at periods of very high water the stage

of the Connecticut may be reduced 5 to 6 inches, at medium

stages less, and at very low stages its flow is increased.

INUNDATED LAND.

The parties stipulated that in the Connecticut river bottoms

there are about 9.500 acres of meadow land used for growing

hay which are subject to periodical inundation by the river;

that this acreage grows from two to three tons of hay per year

Which is used for feed of cows and horses and usually can be

marketed, if carried over to spring, at about $26 per ton, or

sold standing at substantially an average price of $12.50 per

ton; that when this land is inundated it grows a hay«rop with-

out fertilization and the flood waters are a benefit in that they

increase the crop of hay which can be grown without fertiliza-

tion; that diminution in the height of flood water would be a

detriment to such of the lands as thereby are not overflowed

and that practically no crops other than hay are grown on the

regularly inundated land.

It needs no testimony to prove that floods and inundations

frequently cause damage. The Mayor of Hartford in this case

showed dykes built at considerable expense in Hartford to fend

off Connecticut river floods. The benefit: from inundation of

the 9,500 acres of hay land is exceptional. The amount of

injury to the hay crop likely to result from the Swift and Ware

diversion Was net proven,— probably is not capable of proof—

and was left to conjecture. Flow much hay land would tail

to be submerged because of the diversion is quite uneertain,

The land owners who testified showed that the hay hinds were

not of uniform elevation: that sometimes small arenas are not

submerged resulting in a diminished crop.

The height of thoods will be lessened from one to six inehes

by the proposed diversion. Tt seems certain that staadl pieces

of hay land here and there in some vears would fail, because of

the diversion, to receive flood waters, which they would have

votten Without it. But there is no attempt to show te whit

extent this would be true and it is impossible to determine from

the evidence

The lessening of spring floods will have its advantages and

disadvantages. Tt will lessen some damages and inerease

others, On the whole T think the damage to the hay Lind is not

shown to be of “serious magnitudes” and that such damage. far

from being “established by clear and convineing evidence’. is

shown by no evidence making Uf possible of computation or

proving that it is large.

POWER PROJECT.

Only one possible power development is shown. This is at

Kiug’s Island in Connecticut near the state line where 4.000

horse-power is now developed at a 24-foot head. The company

which owns this power has been authorized by the Federal

Power Commission to build a higher dam to develop approx:

imately 50,000 horse-power. This work so far as the testimony

_—

shows has not been resolved on by the company, and so far as

shown the required capital has not been subseribed or arranged

for.

If these facts bring the power within the cases of New York

vr. [Minois and Sanitary District of Chicago, 274 U.S. 488, and

New Jersey vo Sargent, 268 US. 328, pp. 33s-9, injunction on

this ground should be denied because no present use of the

waters for power purposes will be disturbed.

But assuming that the cases cited do not apply; giving allow-

ance for water released at times of low tlow in accordance with

the Secretary of War's requirements, the loss of power attribu-

table to the diversion would amount to $7,920 per vear valuing

each kilowatt hour lost at 6 cents; $7,920 per vear capitalized

ato per cent is about $160,000; from this should be deducted

SS0.000 representing a saving in capital investment resulting

from the required addition to water in low flow furnishing

1.000 additional horse-power at low stages; this increase of

iniiuim power would cause a corresponding decrease in steam-

power plant, whieh will be required to supplement the water

in times of low flow. This $80,000 deduction was testified to

by Mr. Weston Fuller whose testimony was not questioned.

Therefore it appears that if this water-power is developed to

the extent of 50.000 horse-power the Massachusetts diversion

of Ware and Swift waters will cause an injury to the power of

SS0 000.

I know of no objection (assuming that the immaturity of the

power project is not fatal) to the court requiring Massachusetts

lo pay to the power company or its assigns $80,000 if and when

the power is developed to the extent stated.

rs)

RUN OF SHAD.

It is shown that shad have been accustomed to run up the

Connecticut river and its lower tributaries to spawn. This hap

pens in the spring, generally in strong flowing water The

fresh water from the Connecticut in time of flood is described

as yoing out two miles into Long Island Sound ame attracting

the shad. Connecticut is engaged in operuting fish hatcheries

for propagating shad and it licenses and regulates shad fisher.

men.

Some witnesses believed that a large freshet encouraged shad

to come up the river The Superintendent: of Connecticut

State Board of Fisheries and Game believed that a reduction

in flood would be harmful te fish life. but as to whether the shad

catch varied directly with height of floods the witness was net

willing to commit himself. A graph showing statistics for the

shad catch was introduced, complainant's exhibit 2900 See aise

complainant's exhibit 3000 The graph DP think fails te prove

that shad catehes follow high May floods This is adse indi

cated by complainant's exhibit 28a, which sas prepared by

Massachusetts from the shad cateh figures in complainant's

exhibit 30 combined with the flood flows as found in the records

of the United) States Geologieal Surveys and of the Holyoke

Water Power Company. These charts lead to the inference

that the variation in shad cateh is due largely to elements other

than mere height of floods. Such factors as temperature, time

of flood, artificial propagation of shad, limiting and regulating

shad fishermen and the fishing industry, existence of dams and

other conditions. See also defendant's exhibit 12 showing shad

taken each vear from IS72 to 1924.

On the evidence [ tind that the lowering of thood water re

sulting from proposed diversions is not shown to be materially

injurious to the shad run,

It was also contended that pollution in the Connecticut

would be increased by the proposed diversions and that this

would have a deleterious influence on tish life. For the present

I pass the question of pollution to take it up under the next

heading.

POLLUTION OF THE CONNECTICUT.

The testimony shows that the Connecticut river has been

treated, like most of our rivers, with an utter disregard to its

purity. Pollution both from sewage and factory wastes has

heen permitted both by Massuehusetts and by Connecticut and

the policy in those states appears to have been not materially

different from the other states in New England. This is not

a bill to abate the pollution. The issue is not raised in the case

and Connecticut in such a bill could not come into court with

clean hands. See Missouri vr. Tlinois, 200 U.S. 496, 518-520.

The bill of Connecticut sets forth that certain cities, towns,

factories and riparian owners in Massachusetts discharge sew-

age and factory waste into the river. The contention is that

sich a condition necessitates the whole natural flow of the

stream, including flood flow. in order to fight this pollution.

Any diminution of this flow Connecticut says will seriously

affect the public health, cause sickness, suffering and possible

disease and irreparable damage.

On this subject as well as on the water and water supplies in

northeastern Massachusetts vet to de considered some of the

most eminent and fair-minded experts of the country gave

testimony. T wish to testify to the qualifications, high intelli-

gence and absolute fairness of these experts.

Their testimony was based on a great number of samples

taken from Connecticut water during extended periods of time.

The water is shown to be polluted. The number of colon

<< SS RR MMB A Ian ne

‘

baciti whieh it contains was the subject of much testiniony

whieh TP ocho mot think teed. elaboration [ de-porosit of sludge

berdy at sotne places was alse shew Pt was agreat by all the

eX perts that water an the prrll titer! comelitien: off the Cuonreceny.

cutis shert of do full oxavyen sapply ame the quality of the

Water tod large extent is iidiesnted by its detichemey im oxygen

Ovvyen eopremiiters fer ceptpstatiie: thre prerbitatiern atid cloubtiess tf nm]

Witers Copreritte fern smrtines eeN\ Tent tee eurrs af eorit tan serta ft was

shown that the Commeetieut river between the meorthern (on.

neetient line ane oo poecotnat ittocotat sty mfilees beeelow Pbsertferd os

greatly iiiproved in condition notwithstanding the disehorge

of sewage bv Phart fore The reason of this as that the woter

Ine restses from the gir its on ven supply aed Ow ven as dest rie

tive of pollution Pwooof the principal Commeetiout experts on

this stpleyewt were Prefer Worms low of Yirhe cared Dor Ride fru

Rutyvers The following isanmextmiet from Professor Wins a's

Tees Ltaonny

Primer PIN AMINATION

4) Now. Ver cope cpeatiapmtes? dm ae general wars i}

the Miursscrebitisetts levsrastiptaenty cas ter the sabstraetion oo

Water authorized umder that legislation off Miasspebruserts’

\ [no yveneral wav, Ves. sir”

“QQ Yon are qreepmainted: with the nestrietions tiipeosed

by the War Department? A Yes, sir.”

“Q) PRow mueh effeet would the restrietions iniposed

by the War Department have npon the Connection: River

at the State line, assuming they are complied with? A 1

don’t think that the champe would be suftieient one way or

the other during the stinmer months te be detected by any

Inethods at our disposal, either wary

“Q. Tt doesn't make any difference whether it is) the

Massachusetts legishition or the restrietions of the War

Department? AJ Just look at it from oa broad—let me

try te look at it notas an expert. but froma broad com:

)

mon sense standpoint at the beginning. Sav vou are put-

ting incor taking out something well under five per cent.

Now, then. none of these methods we are using on the river

would cheek on samples taken halfian hour apart within

five perceent. Tn other words, TPT ecannot conceive that the

effect of these differences and the change im the condition

at the State line could be detected by WHY Theahs We Thaw

pursue

“) What do vou mean?

“The Witness: Tomean if vou take out five per cent of

the water in the Connecticut River or five per cent of the

ONvgen or if vou put itin, putin tive percent more or take

Hoeutoof that now reaching the State line, if vou could

take the river just above the State line and had a magnet

ond could piek out five percent of the oxygen or put in five

percent more of oxygen. nobody would be able to tell the

ditterence. Tf the experts on both stdes of this case were

there before aod afterwards TP doubt if they would be able

focobtuin results that would show a ditference,

“Tf vou take out ten per cent, TP oam inelined to think

vou could probably find a damage ora benetit, depending

on Whether vou are putting itoin oer taking at out. Then

ifvou yet LO percent. Pam rather sure vou would have a

rather definite and appreciable and serious result if} vou

diverted out of this flaw. ¢Phis tlow is around 3.400 mil-

hon pgailons average during that summer) Now if vou

hid taken out S00 million gallons out of that thirty-four,

eutoof that pure water, TP think there would have been a

very serious effect oon the water at the State line and it

would probably have had a greater effeet on the oxygen,

and would have probably been sufficient to push that river

over the danger line and make it an open sewer instead of

aostream. But if vou took out four hundred, vou could

probably detect it analytically; it might be ai little less

pure. Tf vou took out a hundred thousand or two T dot

think that even a group of eminent experts could detect

With any certainty any effect. Wei can say that every

quart we take ont makes it worse or every quart we put in

Inakes it better, but within the limits we enn use in an

ulyzing vou would have te have LO per cent change, let us

muy. one way oor the other before vou conld get anything

that would be really signitieant

“Q So that «> far as the actual condition of the water

is coneerned if isn’t yoing to be materially affected one

wavorthe other? A Tdon't think

“Q Ttenan’t be any better and vou don't think it would

be any wore? AO TP dent think either diversion under

the War Department ruling or diversion under the Mass

chusetts statute. as Tounderstand it, would make any de

teetable clitferenes in the water at the State line

“C2 At present? oN Vt petecsernet

“(2 Now von suv that rf there was a contribution ur

ing the low thow period of perhaps TO per cent of ovyven

from pure water at would have an appreciable effect for

ther premoel of the stream at the State lime? A T othank a

would oP think sou would probably tind that that was a

Hleteetable citferenern

“Q Se that af the compensation from the diversion of

the Ware and Swift rivers amounted to LO per cent of your

ON Vgen ino spite of the amount which is authorized to be

released under the War Department's restriction. you

would have ao substantial benefit imstemd of ao situation

Which does not change the present situation’ AO Pb think

anything that added LO) per cent to the pure water on the

Counectient river would benetit it appreembly

(hossS PIN AMINATION

“Qo Supposing that the thaw of the Swift) river during

that period was 12 per cent of the Connecticut's tlow at

the state line. would that amount fall within the enanty

ties which vou deseribed as negligible and non detectable?

A. [think it would, ves, sir.

“Q. And as Tounderstood von, neither vou nor the ex

perts on our side would be able to determine with any sat-

isfaction to therglves: or to yourself, what the etfeet. of

that was, that addition or subtraction? A. Assuming it

to be 13 per cent of the total flow of the river?

“Q. Of the total flow of the river? A. Yes; IT think

that is true.

“Q. As Tounderstood vou, that would be true probably

up toa contribution or a diversion of about five per cent?

A. T should sy somewhere around there, ver.

“Q. And after five per cent it would become detectable

and at 10 per cent T think vou stated that it would be

detectable? AJ Yor.

“Q And at 20 per cent it would be not only detectable

but serious? Al Yes, sir.

“Q. And that applies with reference to the amount of

ovvgen inthe water? A] Yes, that applies to water which

is relatively pure Tam assuming in that, that the water

diverted is water diverted at the upper part of the stream

before it is heavily polluted If vou take ont one-fifth of

the water at the state line you would not change the per.

centiyve relations at all:

“Q Would vou say that that same conclusion was true

as regards the public health? A. Well, ves, IT should,

house vou would have to have an enormous change in

quality on the one hand and an enormous improvement,

to make the river safe for bathing. You would have to

have a very large change for the worse to make it impos

wible to purify it by storage. chlorination, or filtration. IT

should say then that a change of five per cent either way

was not of practical moment,

“QQ. Kither as regards the purity of the water or the

eect on the water with respect to publie health? AL Yes,

sir. . . * *

“Q. If there would be any determinable ditference how

much difference do you think there would be in the cost

of purifying the Connecticut river at Hartford, in the way

you have suggested by storage, filtration, and chlorination,

before and after this Ware and Swift river diversion?

A. LT have tried to indicate that the difference due to the

abstraction of one per cent or two per cent of water is so

Slight that it cannot be measured in any concrete way. It

isa purely theoretical damage or advantage when we are

Within these limits.

“Q. Por any purpose? AL Por any purpose that |

know of we cannot determine within one or two per cent

7 * .*

nega iy! Soh bi ek gar cael a SL

Doctor Rudolfs’ testimony did not ditfer very materially

Pee

from that given by Professor Winslow. He agreed that quite

a substantial addition or diminution of the Connecticut tlovw

would be necessary to make a noticeable difference in pollution,

Professor Karle B. Phelps of Columbia, Mr. Robert Spurr

Weston and Mr. George W. Fuller, all called by Massachusetts,

Ventre x re

examined over 4,000 samples of Connecticut: water and tribu-

tary waters taken at 15 different stations during a period of

about six months. They all testified that the diminution in

compra Dil +.

flow resulting from the proposed diversions would have no per:

ceptible effect on pollution, |

[think the plaintit? has failed to prove that the proposed

2 DN ES th

diversion would perceptibly increase Connecticut river pollu

tion, and consequently that there is no satisfactory proof of

> Sal Peers

material pollution damage to the Conneetient to result from 4

installing and operating the proposed Ware and Swift) works,

If.

The next inquiry is whether Boston onght to be com

pelled on the evidence. to take its water from the eastern

portion of the state. Thus far the findings and statement of

evidence have been confined to effect on the Connecticut

river of the water diversions proposed by Massachusetts. On

that branch of the case my conclusion is that Connecticut has

failed to show any important and very considerable damage

(unless it be to the power plant which can be paid for in a

l ]

definite sum of money). But I think it must be admitted as

witnesses testified that any diminution of the flow of the Con-

necticut causes damage to some extent; some damage although

it may be small and incapable of estimation. And were it

made clearly to appear that Boston and the other population

in northeastern Massachusetts have an abundance of perfectly

good water at home, that might be a good reason why equity

should enjoin their going to the Connecticut watershed and

thereby causing a neighboring state even a small damage.

In this view I have regarded as important the allegation of

Connecticut in an amendment to the bill that the Boston Dis-

trict as well as the neighboring population can well be supplied

with good water from the eastern part of the state. Many civil

engineers, water engineers, and water and sewage experts were

examined upon this question and many exhibits were intro-

duced.

The first fact, and I think it quite important, is that the peo

ple of Massachusetts have decided against the eastern water

supplies by passing the Ware and Swift legislation. These

ats were the result of long-continued and = careful study

commencing in 1S. In that vear there was a report, House

Document (1895) No. 500. by the Massachusetts State Board

of Health. As a result of this report the present Wachusett

reservoir, in which are stored the waters of the upper Nashua

river was adopted. A second report was made in 1922, House

Document No. 1550, a Report of Joint Board of Water Supply

Needs and Resources. This report embodied the recommenda-

tions of the Massachusetts State Department of Health and

the Metropolitan District Commission, acting jointly, as to

the appropriate method of extending the Boston Metropolitan

District water supply. The report recommended extending a

tunnel westwardly from the Wachusett reservoir to the Ware,

thence further west to the Swift where a reservoir was to be

built in which to store waters drawn from these streams. This

report was not acted upon by the legislature at once and another

commission &bown as the Gow-Hazen Commission examined the

situation and reported in favor of taking water from the Ware

river together with certain eastern Massachusetts sources (in-

cluding the Assabet. Ipswich, and Sudbury rivers). This re

port raised objections from the Ipswich valley, from Concord,

and from towns on the Assabet. Finally the legislature de-

finitely rejected the eastern supplies including the Merrimack

and passed the acts of 1926 and 1927 for taking water from the

Ware and Swift. T think these investigations and the legis

lative acts show a public sentiment against the eastern water

supplies and make a prima facie case that these supplies are

inadvisable, either because inadequate or unfit. However the *

engineers and other experts called by Connecticut have made a

strong effort to show that this legislative determination. is

wrong and that the northeastern portion of Massachusetts has

abundant supplies of water of good quality for Boston and the

northeastern population of the state for the next 50 vears and

more. The southeastern part of Massachusetts, including Cupe

Cod, seem to have sufficient supplies of wate

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