Page images
PDF
EPUB

That the diversion of an additional 1,000 cubic feet per second would not unduly affect lake levels and interfere with navigation or power on the Great Lakes and that Canada would probably benefit rather than be injured by such diversion seems indicated in an editorial by the Toronto Globe and Mail, published in the Chicago Daily Tribune, August 20, 1956, which, in part, read as follows:

President Eisenhower has asked for acceleration of the studies being made by the United States Army Corps of Engineers. The engineers are charged with preparing recommendations for the best utilization of the Great Lakes as a source of water, for the movement of shipping, and for other purposes. One of the political anomalies that has developed in the past 5 years is that while Chicago. wants more water, New York representatives have inveighed against the Ontario. Hydroelectric Commission for putting too much water into Lake Superior. * * *. It would be to Ontario's benefit to divert more of the northwestern rivers into Lake Superior. Surely some method of control could be devised to give Chicago the water it so urgently requires.

Recognizing that expert testimony has been presented regarding most generally all of the legal and technical aspects of the diversion question, it is our hope that we may call to your attention a very important consideration that seems to have been overlooked—at least in the veto message.

NEED OF INCREASED DIVERSION FOR SANITATION PURPOSES

We, therefore, should like to direct our testimony to this point not covered by the veto message. This has to do with the importance of lake diversion to the sanitary condition of a stream running through an area involving some 7 million or more people, 6 million of whom are in the 6-county Chicago metropolitan area, and 4.6 million of whom actually are using the facilities of the sanitary district.

Adequate consideration must be given to the importance of diversion for navigation and sanitary reasons. To legislate in this respect in behalf of the health and welfare of the people of this area is certainly within the right of Congress.

Just as the opponents to this diversion in the early days gave no consideration to the diphtheria epidemic, later solved by our engineering science, is there consideration today by some opponents for the plea that diversion is needed for the health and welfare of a great metropolitan area.

Science cannot correct this situation. The dissolved oxygen required to clean and keep clean this stream can only be provided by diversion of Lake Michigan water into the Chicago River and the Illinois Water

way.

We are fast reaching the time when some 10 million people will be living in this great area, and there will be a corresponding increase in the industrial output and resulting waste from industry. This is a matter that requires immediate attention.

This legislation will give the immediate attention that it rightly deserves, by permitting the Corps of Engineers and the United States Department of Health to study the effects of diversion over a 3-year period.

The Sanitary District of Greater Metropolitan Chicago, as you know, has been cited as one of the seven wonders of the world. Today it serves some 4,600,000 people and some 125,000 industrial and business rms, covering some 507 square miles of area.

It handles the sewage of some 4,600,000 humans and the industrial wastes equivalent to over 32 million people, making a total waste equivalent to well over some 8 million persons.

Today the sanitary district is able to purify this sewage to the extent of 90 percent, meaning that some 10 percent of microscopic waste which cannot be treated or purified to any greater extent is left in the effluent that is put into the Chicago River and the Illinois Waterway.

As previously pointed out, the sanitary district is recognized as having the finest treatment plants in the world, and yet even the finest cannot filter out some 10 percent of microscopic waste.

This, therefore, means that the equivalent of the untreated waste of some more than 800,000 people per day is dumped into the Chicago River and the Illinois Waterway in an area populated with some 6 million people. In addition, this does not take into account the storm floods and other refuse which finds its way into the river and waterway in an untreated and raw stage.

To visualize the significance of this untreated waste of some 800,000 people or more, let us consider the fact that St. Louis, based on the 1950 census, had a population of some 857,000 people, Milwaukee some 638,000, and Washington, D. C., of some 802,000.

Within 5 years, it is estimated, the population of this metropolitan area will increase some 1 million persons, and this with the corresponding industrial expansion will mean that within 5 years the equivalent of the untreated waste of some 1 million people will be dumped into the Chicago River and the Illinois Waterway. It is this condition to which we want to call your attention.

We propose to alleviate the problem by experimenting for 3 years with diversion of 1,000 extra cubic feet of water per second from Lake Michigan to help flush what is now-and is fast becoming worse—an uncleaned stream in a great metropolitan area.

Were it possible today for science and technology to provide the oxygen needed to make this waterway a clean stream at almost any cost within reason, you can be assured that the people of this great metropolitan area would not be asking for this legislation.

The people of the Metropolitan Sanitary District of Greater Chicago have now spent some $310 million on filtration plants. The expenditure was to meet, among other things, a United States Supreme Court decision which held that our diversion had to be decreased. should, however, prove that the people of this area have done their best to work this problem out.

This

We are asking for only the help that nature with support of the Congress can give. We frankly believe that the law is all on our side, as evidenced by the brief of the Chicago Bar Association.

Our only real opposition appears to be based on international relations and fear of what might happen. We only ask for a 3 years' study to corroborate that our case is just and equitable to all concerned. The Chicago metropolitan area desperately needs the passage of legislation providing for the diversion of water from Lake Michigan. I would like to have incorporated in the record a copy of the letter we sent to the President after his veto the second time, and also a special study made by the Chicago Bar Association on the legal aspects of diversion at Chicago, which I think has great bearing on this whole Great Lakes compact.

Senator WILEY. They will be placed on file.

Mr. COULTER. All right, sir. If they are incorporated in the record, that will satisfy me.

(The documents referred to are as follows:)

CHICAGO ASSOCIATION OF COMMERCE AND INDUSTRY,

Hon. DWIGHT D. EISENHOWER,
President of the United States,

The White House, Washington, D. C.

Chicago 2, Ill., August 7, 1956.

DEAR PRESIDENT EISENHOWER: This is to urge your favorable consideration and approval of H. R. 3210, the Lake Michigan water diversion legislation.

This bill authorizes the State of Illinois and the Metropolitan Sanitary District of Greater Chicago, under the supervision and direction of the Secretary of the Army, to temporarily withdraw from Lake Michigan, at Chicago, for a period of 3 years, an additional amount of water of 1,000 cubic feet per second to enable the Army engineers to study the effect thereof in the improvement in conditions in the Illinois Waterway and to report to the Congress as to the results of the study and their recommendations.

Similar legislation passed in the 83d Congress (H. R. 3300) failed by reason of a pocket veto. In your memorandum of disapproval on H. R. 3300, the following reasons were given: (1) Existing diversions were adequate for navigation on the Illinois Waterway and the Mississippi River; (2) all methods of control of lake levels and protection of property on the Great Lakes should be considered before arbitrarily proceeding with the proposed increased diversion; (3) the diversions are authorized without reference to negotiations with Canada; and (4) the legitimate interests of other States affected by the diversion may be adversely affected.

Since the time of the pocket veto, certain new factors have developed which should, in our judgment, justify your favorable consideration of the present bill. Among these are

(1) Specific legislative intent by the Congress relative to the necessity of of lake diversion for sanitary reasons;

(2) The conclusions of the International Lake Ontario Board of Engineers report to the International Joint Commission, on the effect on the Lake Ontario levels of an increase of 1,000 cubic feet per second in the diversion at Chicago, for a period of three (3) years, which in part are as follows:

"24. The maximum temporary reduction in lake levels would be about 5% inch. It is considered that this reduction would have no significant effect on navigation.

"25. It is considered that the computed reductions in dependable capacity of 2,600 and 2,750 kilowatts at Niagara River plants in Canada and the United States respectively, and of 2,145 kilowatts at the Beauharnois plant, are of such temporary character and small magnitude that the provision of any replacement capacity would not be justified ***" (p. 11).

(3) A report and opinion of the Chicago Bar Association relative to the legality of Lake Michigan water diversion at Chicago, which finds, among other things, that the 1909 Treaty between the United States and Canada (which treaty, insofar as this lake diversion is concerned, is still in full force and effect, and has not been changed) guarantees the right of such diversion for sanitary purposes.

On Thursday of last week, August 2, 1956, a meeting was requested through your office for representatives (10 in number) of the Chicago metropolitan area, including representatives from Gov. William Stratton, of Illinois, and Mayor Richard J. Daley, of Chicago, to discuss this matter with the officials who would counsel and advise you relative to the bill.

The meeting was arranged with Burke Elbrick, Assistant Secretary of State for European Affairs, and four other representatives of the State Department. At this meeting the delegation presented arguments in support of the measure and in answer to the known objections of the State Department. As a result of the meeting, those of us in the delegation became firmly convinced that we had presented to the State Department much information relative to the sanitary and navigation aspects of the matter not previously known.

We are further convinced that perhaps only one obstacle stands in the way of the State Department in recommending your approval of the measure, and

that is the possible feeling that Canada would not look with favor on our diverting Lake Michigan water for sanitary purposes. Lake Michigan water diversion is a vital matter now to the Chicago metropolitan area and Illinois for sanitary reasons. It is a domestic problem of real significance, involving over 7 million people. It is a condition that cannot be permitted to continue when we consider that the health and welfare of so many citizens of our country are involved.

The people of the Chicago metropolitan area have done everything within their power to provide the best and most modern sewage treatment plants. Over $320 million has been spent in building treatment plants by the Metropolitan Sanitary District of Greater Chicago, which have been cited as one of the seven engineering wonders of the world.

Today the sanitary district handles the sewage of 4.6 million persons and the industrial wastes equivalent to the sewage of 3.5 million more persons, making the total sewage treated by the plants equal to that of some 8 million persons. But even the finest treatment plant in the world can only purify this sewage to the extent of 90 percent, meaning that some 10 percent of microscopic waste which cannot be treated or purified to any greater extent is left in the effluent that is in this case put into the Chicago River and the Illinois Waterway. This means, therefore, that the equivalent of the untreated waste of some more than 800,000 people per day is dumped into the Chicago River and the Illinois Waterway in an area populated with some 6 million people.

It is this condition that we plead with you to help us correct. It can only be corrected by the diversion of fresh water from Lake Michigan, thereby providing the needed dissolved oxygen to flush this unclean waterway.

Within 5 years, it is estimated that the population of this metropolitan area will increase by some 1 million persons. With the rapid industrial expansion, coupled with the corresponding increase in our population, the matter of diversion becomes a problem of immediate concern, the solution of which cannot be justifiably further deferred by waiting for negotiations with Canada.

It is our position that, irrespective of the merit of our case relative to the diversion of Lake Michigan water for sanitary reasons, the United States has the legal authority, by treaty, to take unilateral action in diverting Lake Michigan water in this particular instance. Canada committed itself to unilateral action by the United States in this matter upon signing the treaty of 1909.

In view of the terms of the treaty and the history of unilateral action in diverting this water, the United States should not be required to submit for Canada's consideration the minor diversion now proposed. When the State Department refers to the history of joint_consultation, it is speaking of joint consultation on boundary water matters. Lake Michigan is not a boundary water, and diversion from it is within the "exclusive jurisdiction and control of the United States" (1909 treaty, art. II). Furthermore, article VIII of the 1909 treaty states explicitly that water uses for power and navigation purposes are subordinated to domestic and sanitary purposes.

We strongly feel that the Congress has the right to legislate upon this subject of diverting Lake Michigan water at Chicago for sanitary purposes, and further feel that Congress should not be deprived of its right to take this action in providing for relief of a serious sanitary problem involving the health and welfare of so many people. A veto of this measure cannot but deprive the immediate and just relief due the people of the Chicago metropolitan area and Illinois. May we again point out that the Congress has in this instance legislated on the matter for sanitary reasons, as well as for the purpose of lake level and navigation studies. The study to be made by the Corps of Engineers, as provided by the bill, is to include a study by the Department of Health, Education, and Welfare.

The 7 million people of the Chicago metropolitan area and Illinois, who are vitally affected by the present unsanitary condition of the Illinois Waterway, urge your favorable consideration and approval of H. R. 3210. Respectfully submitted.

THOMAS H. COULTER,
Chief Executive Officer.

REPORT OF COMMITTEE ON INTERNATIONAL AND FOREIGN LAW OF CHICAGO BAR ASSOCIATION REGARDING H. R. 3210 ON CHICAGO WATER DIVERSION

By letter from Richard M. Cain, executive secretary of the Chicago Bar Association, to David M. Gooder, chairman of the committee on international and

foreign law, dated October 28, 1955, the board of managers requested the committee to study and report on the legal aspects of H. R. 3210, a bill to authorize the State of Illinois and the Sanitary District of Chicago to increase the amount of water diverted from Lake Michigan at Chicago from 1,500 cubic feet per second to 2,500 cubic feet per second for a 3-year period. A copy of H. R. 3210 is attached hereto as appendix A. The bill was passed by the House of Representatives in the 1st session of the 84th Congress and is now pending in the Senate.

THE BACKGROUND

The rapidly growing city of Chicago was, in the latter part of the 19th century, confronted with the problem of disposing of its sewage and at the same time maintaining a potable water supply for its citizens, a problem rendered difficult by the fact that Chicago's sewage was then being dumped into Lake Michigan, which was also the source of the city's water. To meet this problem, a canal was cut joining the Lake Michigan and Mississippi watersheds, and the flow of the Chicago River was reversed so that Chicago was able to send its sewage through the Mississippi Waterway and conserve the purity of its water supply in Lake Michigan.

In connection with the construction of the canal and the reversal of the flow of the Chicago River, the Sanitary District of Chicago, the municipal corporation responsible for sewage disposal in an area, including the city of Chicago and other areas in Cook County, diverted waters from Lake Michigan into the Illinois (and, eventually, the Mississippi) Waterway. Originally operating under a permit issued on May 8, 1899, by the Secretary of War for the purpose, the sanitary district took 5,000 cubic feet per second from Lake Michigan and caused the same to flow into the Illinois Waterway. Since that time, the amount of diversion has varied from 10,000 cubic feet per second (for short periods of time) to the present diversion of 1,500 cubic feet per second. The number of cubic feet per second is computed on an annual average basis, as little water is diverted during the winter months and more water during the summer months. The State of Illinois, the city of Chicago, and the sanitary district have attempted from time to time to obtain greater diversions.

Beginning May 8, 1899, there was a diversion of 5,000 cubic feet per second. Various permits issued by the Secretary of War varied this figure from time to time from a low of 3,333 cubic feet per second to 5,833 cubic feet per second during a period of approximately 26 years. During this period, after the improvement of the facilities on the South Branch of the Chicago River, the sanitary district applied to the Secretary for an increase to 10,000 cubic feet per second. Henry L. Stimson, then Secretary, denied this application on January 8, 1913. Temporary increases were, however, allowed from time to time, and Chicago and Illinois contended that more water was necessary. On October 6, 1913, the Attorney General of the United States brought an action in a district court of the United States to enjoin the sanitary district from diverting more than 4,167 cubic feet per second. It was not until June 18, 1923, however, that a decree was entered by the district court granting the relief sought by the plaintiff. The decree of the district court was affirmed by the Supreme Court of the United States on January 5, 1925, per Holmes, Justice (Sanitary District v. United States, 266 U. S. 405). In this case, the Court rejected the argument that the United States was without jurisdiction to stop the defendant from diverting water on the ground that the United States was "asserting its sovereign power to regulate commerce and to control navigable waters within its jurisdiction." The Court declared that the diversion could be enjoined by the United States because of the commerce power, because treaty obligations were involved, and perhaps because of the ultimate sovereign interest in the lakes of the Federal Government.

Two months later, on March 3, 1925, the Secretary of War granted a permit authorizing diversion of 8,500 cubic feet per second until December 31, 1929. Prior thereto, in 1922, the State of Wisconsin had initiated a suit against the State of Illinois in the Supreme Court of the United States. This suit, into which other Great Lakes States later joined as party plaintiffs, was also brought to restrain the diversion of waters at Chicago. The Supreme Court referred the matter to Charles Evans Hughes as special master, and upon his report based its opinion, rendered on January 14, 1929 (Wisconsin v. Illinois, 278 U. S. 367). The Court in this case held that no legal basis existed under the statute for diversion in excess of the amount required for navigation in the Chicago River. The Court specifically found that the statute under which the Secretary of War

83065-56-8

« PreviousContinue »