had permitted the 8,500 cubic feet per second did not permit the Secretary to authorize diversion for purposes of sanitation, which the Court found to be the primary reason for the diversion. Whereupon, the Court in its opinion (per Taft, Chief Justice) again referred the case to Special Master Hughes to frame a decree calling for an orderly schedule for reduction from 8,500 cubic feet per second to the amount necessary for navigation. The decree based on his recommendation and entered on April 21, 1930 (281 U. S. 696), called for a reduction to 6,500 cubic feet per second on July 1, 1930; to 5,000 cubic feet per second on December 13, 1935; and to a final permanent diversion of 1,500 cubic feet per second on December 13, 1938. The reduction in diversion was to be accompanied by the construction of disposal plants by the sanitary district to treat increasingly larger percentages of Chicago's sewage until the maximum treatment was to be available, on December 13, 1938. The decree reserved jurisdiction to the Court until such time as the decree was carried out.

The schedule was not adhered to, since a local tax strike in 1931-32 made it impossible for the sanitary district to obtain financing for the required disposal plants. Further financial difficulties during the depression, and later material shortages during World War II, all delayed construction of the improvements. In 1940, Illinois sought a temporary modification of the 1930 decree to allow 5,000 cubic feet per second on two grounds, namely, that a health menace existed along the Illinois Waterway and that the sewage treatment plants were behind schedule and would not be completed until 1942. The Supreme Court (309 U. S. 569), after finding that Illinois had not shown sufficient cause for the requested modification, nevertheless appointed a special master. During the litigation in 1940, the parties stipulated to a temporary 10-day diversion to clean up amounts of flocculent active sludge in the waterway (311 U. S. 105). The special master's report found that no health menace existed, but did find that there was a nuisance created by the condition of the sewage in the waterway. Following this, in 1941 the Supreme Court confirmed the master's report on this point and dismissed the petition of the State of Illinois seeking a review of the matters decided in the original opinion (278 U. S. 367), as later amplified. The treatment plants of the sanitary district were thereafter completed, such works conforming to the 1930 Supreme Court decree.

Since the Supreme Court decisions in the 1930's, legislation has been introduced from time to time in the Congress which would authorize Chicago to increase the diversion of waters from Lake Michigan into the Illinois Waterway. None of these bills was passed by Congress, with the exception of legislation introduced into the 83d Congress, known as H. R. 3300, providing for an additional diversion of 1,000 cubic feet per second. This legislation was vetoed by President Eisenhower on the grounds that (1) existing diversion was adequate for navigation on the Illinois and Mississippi waterways; (2) all methods of control of lake levels and protection of property should be considered before arbitrarily proceeding with the proposed increased diversion; (3) the legitimate interests of other States affected by the diversion may be adversely affected; and (4) the diversion was authorized without reference to negotiations with Canada. A copy of the veto message regarding H. R. 3300 is attached hereto as appendix B. The President's reference to negotiations with Canada apparently related to a study undertaken in 1952 by the International Joint Commission pursuant to a joint reference under article IX of the Boundary Waters Treaty of 1909. Chicago diversion is incidentally involved in that study. No report has been issued as yet by the Commission. However, an interim report, prepared by the International Lake Ontario Board of Engineers at the request of the Commission and in connection with the joint reference of 1952, was filed with the Commission on June 14, 1955. The Board of Engineers had been asked to report on the effect on Lake Ontario levels of an increase of 1,000 cubic feet per second in the diversion at Chicago from Lake Michigan for a period of 3 years. Without extensively reviewing the interim report, we here note that the report makes this statement:

"24. The maximum temporary reduction in lake levels would be about fiveeighths 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).

The report states further that 276,000,000 kilowatt-hours per year would be lost at existing plants or those actually under construction on the St. Lawrence seaway. This committee is not qualified to assess the significance of the reduction in power potential anticipated by the Board. We are informed, however, that the two new powerplants being built on the St. Lawrence, one Canadian and the other American, will produce 6.3 billion kilowatt-hours annually each, with a dependable capacity of 7 million kilowatts. We are also informed that the total outflow of water at the St. Lawrence averages 237,000 cubic feet per second, and varies within a range of 144,000 to 314,000 cubic feet per second. The effect of the proposed withdrawal of an additional 1,000 cubic feet per second at Chicago may be assessed in the light of that total outflow.

By the proposed bill (H. R. 3210) authority is granted to Illinois and the sanitary district, under the supervision and direction of the Secretary of the Army, to withdraw an additional 1,000 cubic feet per second for a 3-year period. The Secretary of the Army is given direct control over the amounts diverted and the study to be made. The bill further requires the Secretary to report to the Congress on or before January 31, 1959, the results of his study and his recommendation with respect to continuing the authority to divert water in the amounts authorized in the act, or in increased or decreased amounts. The present bill is similar to H. R. 3300 (the vetoed bill) in its substantive provisions. In the expression of purpose, however, there is a difference in emphasis. While the stated purpose of H. R. 3300 was to regulate and promote commerce, to improve navigation in the Illinois Waterway and the Mississippi Valley, to help control the lake level, and to afford protection for property and shores along the Great Lakes, the purpose of the present bill is to provide a basis for a study of the effects of increased Chicago diversion in those regards.

THE PROBLEMS PRESENTED

Influential opponents of additional water diversion at Chicago have taken the position that H. R. 3210 (the present bill) and H. R. 3300 (the vetoed bill) are contrary to law, for one or more of the following principal reasons: (1) Congress has no constitutional power to authorize the additional diversion; (2) even if the United States has constitutional power to authorize the diversion, that power rests in the Supreme Court, and not in Congress, because the Supreme Court reserved jurisdiction over Chicago diversion in the decree limiting such diversion; (3) additional diversion, without consent of the International Joint Commission, would violate the International Boundary Waters Treaty of 1909. Further objections were made to H. R. 3300 on policy grounds. The State Department and Canada both took the position that since Chicago diversion was involved in the study of Lake Ontario water levels under the 1952 Reference to the International Joint Commission under article IX of the 1909 treaty, Congress should await the report and recommendations of the Commission before authorizing additional diversion. Further, Canadian objections to H. R. 3300 were that additional diversion would: (1) have an adverse effect on navigation in the Great Lakes and the St. Lawrence River; (2) reduce the power potential of the Niagara and St. Lawrence Rivers and perhaps affect arrangements under the Niagara Treaty of 1950 for equal division of water at those points.

In this report the committee discusses the principal legal objections to the proposal for increased diversion. The committee expresses no opinion on the merits of the proposal and makes no recommendations as to how matters of domestic and international policy should be decided.

CONCLUSIONS

I. Congress has power under the commerce clause of the Constitution to authorize the additional diversion.

II. Authorization of additional diversion would not violate the constitutional barrier to giving a preference to the ports of any State.

III. The power of Congress to authorize increased diversion is not affected by the fact that the Supreme Court has in the past considered the subject matter and has retained jurisdiction to modify its decree.

IV. Congressional action authorizing additional diversion at Chicago would not violate the mandatory provisions of the International Boundary Waters Treaty of 1909 or the Niagara Treaty of 1950. Whether Congress should await the report of the International Joint Commission pursuant to the 1952 refer

ence under article IX (1909 treaty) is a question of policy to be decided by Congress. There are no rules of international law or principles of comity which introduce considerations different from those considered in connection with the 1909 treaty.

DISCUSSION

I. Congress has power under the commerce clause to authorize the additional diversion

The opponents of diversion through the Chicago Waterway have argued that the additional flowage sought is not for the improvement of navigation, and that therefore Congress has no authority under the commerce clause to authorize it. It is also asserted that Congress has no constitutional power to authorize the diversion of water from one watershed to another, since that would impinge upon the property rights of States and individuals.

Whether or not these propositions are meant to be separate or interdependent, it seems clear that if Congress has power under the commerce clause to permit the diversion, that power is not limited by private or State rights in the water of navigable streams. This is clearly recognized in the most recent Supreme Court: decision on the subject. (United States v. Twin City Power Co. (U. S. Supreme Ct.) 24 U. S. Law Week (January 23, 1956); see also Federal Power Commission v. Niagara Mohawk Power Corp., 347 U. S. 239, 249-250 (1954).)

We turn, therefore, directly to the determinative question as to the power of Congress under the commerce clause to authorize the diversion. Since there · would be no problem otherwise, the discussion assumes that the additional water is not needed to facilitate the physical movement of vessels through the waterway. There are a number of intimations in the Chicago Waterway cases that: Congress has such power; see quotations in part III, infra. But in the subsequent case of Wisconsin v. Illinois (278 U. S. 367 (1929)), where the point was vigorously argued, the Court did not find it necessary to reach the question, and expressly left it open. The Supreme Court has since declared that that case · "merely decided that under a certain Federal statute there was no authority for diversion of the waters of Lake Michigan for sanitary purposes (p. 418). There is no consideration of the constitutional power to use water for other than navigable purposes, though it is plain that other advantages occur." (United States v. Appalachian Power Co., 311 U. S. 377, 425–426 (1940).)

We think it fair to say, without reviewing all of the cases in detail, that there · are no cases which are directly in point and indistinguishable on the issue which we are considering. On the other hand, no case has ever held invalid a Federal! statute exercising the power of Congress over navigable waters. And the cases as a whole, particularly the more recent decisions beginning with the Appalachian case in 1940, leave little room to doubt the constitutional power of Congress to authorize a diversion from a navigable stream. For the Supreme Court seems plainly to treat the Federal power over navigable waters as plenary. The various aspects of waterway regulation are deemed to be so integrated as to permit of Federal regulation in their entirety. As Mr. Justice Jackson said in his concurring opinion in Northwest Air Lines v. Minnesota (322 U. S. 292, 303 (1944): "*** this Court [has] interpreted the commerce clause of the Constitution! to lift navigable waters of the United States out of local control and into the domain of Federal control."

In the Appalachian case, the Court referred to the "plenary power of Congress over navigable waters" (311 U. S. at 427). See also First Iowa Cooperative v. Federal Power Commission (328 U. S. 152, 182 (1946)) ; Arizona v. California (283. U. S. 423, 456 (1931)); United States v. Commodore Park (324 U. S. 386 (1945)); United States v. Willow River Co. (324 U. S. 499, 509 (1945)); Oklahoma v. At- · kinson (303 U. S. 508 (1941)); United States v. Twin City Power Co. ((U. S. Supreme Ct.) 24 U. S. Law Week 4073 (January 23, 1956)).

These cases taken together as well as individually seem plainly inconsistent : with the suggested limitations on the power of Congress.

In the Commodore Park case, the Navy, to improve the operation of a seaplane' base, dredged a bay and deposited the fill in a navigable creek, thereby depriving · riparian owners upstream of any possibility of navigation, and also making the upstream pool stagnant. In holding that the riparian owners could not recover for loss of property rights, the Court referred to "the Government's 'absolute' power, in the interests of commerce to make necessary changes in a stream" (324 U. S. at 391). The opinion further states that (pp. 392–393):

* The Constitution entrusted to Congress the responsibility of determining what obstruction may, or may not, be placed in such [navigable] waters. ***

"While this project touched two separate, although closely related, bodies of navigable waters, and looked to improvement of shore as well as water facilities, the entire program as to the waters was designed to achieve one closely integrated unit. That there were two bodies of navigable waters to which the one program related, does not detract from Congressional power as to either, for its powers are broad enough to justify one unified program for the connected body of waters to the end that commerce in general may be fostered.

"Thus, having power under the Commerce Clause to obstruct navigation by depositing the dredged soil in Willoughby Bay, the government was likewise authorized to deposit in Mason Creek for the same purpose. There is power to block navigation at one place to foster it at another. ***"

The above passages would seem just as applicable to diversions as to obstructions, and to Lake Michigan and the Chicago waterway as to the smaller and less important navigable waters involved in the Commodore Park case.

The First Iowa case, supra, upheld the authority of the Federal Power Commission to permit diversion of substantially all the water of the Cedar River directly to the Mississippi through a power dam and a canal, instead of through its lower regular route by way of the Iowa River. All of these waters were navigable, and it was found that the project would affect the navigability of the three rivers involved. But it was not suggested that the project would improve navigation on any of them; on the contrary, the effect on the two :smaller rivers was obviously detrimental to navigation, and on the Mississippi apparently so (328 U. S. at 158159). Nor was there even an intimation that the purpose of the project had anything to do with navigation or commerce. In holding that Congress could authorize such a project on navigable streams, the Court stated:

66

[The Federal Power Act]

** It was the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation, insofar as it was within the reach of the federal power to do so, instead of the piecemeal, restrictive, negative approach of the River and Harbor Acts -and other federal laws previously enacted.

"It was a major undertaking involving a major change of national policy. That it was the intention of Congress to secure a comprehensive development of national resources and not merely to prevent obstructions to navigation is - apparent from the provisions of the Act, the statutory scheme of which has been several times reviewed and approved by the courts" (328 U. S. at 180–181). The Court then quoted the Appalachian case as sufficient authority for such an -exercise of Federal power. Here was a diversion of water from one watershed to another, in a manner which affected navigation and commerce harmfully, and yet there was no doubt as to the Federal power. Indeed, the only issue in the -case was one of statutory construction.

In the Appalachian case, the Court sustained the power of Congress, under the Federal Power Act, to require a power company to obtain a license to build a dam on a mountain stream which had been historically navigable and to impose ⚫ conditions which had no relation to navigation or commerce. The Court referred to the "plenary power to exclude structures from navigable waters and domain -over flowage and its product, energy." The opinion continued (311 U. S. 424): "It is quite true that the criticized provisions summarized above are not essen-tial to or even concerned with navigation as such. Respondent asserts that the rights of the United States to the use of the waters is limited to navigation. * * * (P. 426): "In our view, it cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. By navigation respondent means no more than operation of boats and improvement of the waterway itself. In truth the authority of the United States is the regulation of commerce on its waters. Navigability, in the sense just stated, is but a part of this whole. Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control. *** The point is that navigable waters are subject to national planning and control in the broad regulation of commerce granted the Federal Government. The license conditions to which objection is made have an obvious relationship to the exercise of the commerce power. Even if there were no such

relationship, the plenary power of Congress over navigable waters would empower it to deny the privilege of constructing an obstruction in those waters." [Italic supplied.]

These recent cases, none of which seem to be mentioned by those who claim that Congress lacks the power to permit diversion, stand for the doctrine that Congress has complete power over obstructions, or diversions of flowage, in navigable streams, that watershed development in all its aspects, many of which relate to commerce, is an inseparable integrated whole, all parts of which Congress can regulate, and that such regulation may extend to matters which in and of themselves do not relate to or benefit commerce or navigation.

In the latest Supreme Court decision (United States v. Twin City Power Co., 24 U. S. Law Week 4073, decided January 23, 1956), it had been reported to Congress that a dam operated "primarily for hydroelectric power development, would incidentally reduce downstream flood damages and improve low-water flows for navigation," and the court of appeals had found that "improvement of navigation was not the purpose of the taking." The Supreme Court stated:

"It is not for courts, however, to substitute their judgments for congressional decisions on what is or is not necessary for the improvement or protection of navigation.*** The decision of Congress that this project will serve the interests of navigation involves engineering and policy considerations for Congress and Congress alone to evaluate. Courts should respect that decision until and unless it is shown to 'to involve an impossibility' as Mr. Justice Holmes expressed it in Old Dominion Co. v. United States (269, U. S. 55, 66). If the interests of navigation are served, it is constitutionally irrelevant that other purposes may also be advanced."

The Court then referred to the passage from the Appalachian case quoted above. Although this language indicates that some effect on navigation or commerce is the basis for Federal control, it shows that the effect may be relatively minor, that Congress may be concerned with it only secondarily, and that the legislative judgment will be decisive in actual fact. We do not believe that this decision narrowed the doctrine reflected in the cases discussed above.

Insofar as diversion into the Chicago waterway is concerned, the problem is much less difficult than in most of the cases last cited. If Congress permitted additional diversion from the Great Lakes into the waterway, it would necessarily be deciding, at least, that the harm to navigation on the lakes would not be sufficient to preclude use of the water to cleanse the waterway. Such a negative conclusion that an obstruction or diversion may be authorized because, in the overall balance of public interests, it will not substantially impair the interests of commerce and navigation is clearly sufficient, under such cases as First Iowa, discussed above. For Congress to permit it, the diversion or obstruction itself need not benefit navigation. Here Congress is authorizing a transfer of water from one important navigable waterway to another.

Furthermore, the waterway is itself an artery of commerce in a substantial amount. Prevention of pollution in such a stream would seem to be a legitimate objective for the governmental body having plenary control over navigable waters. And this would seem to be so whether the health to be protected is that of those using the waterway, which would be directly related to commerce, or that of persons living in adjacent communities. Moreover, if the pollution produced vegetation clogging the bottom of the waterway, the power of Congress to authorize remedial action cannot be doubted. Congress spends large sums in keeping navigable channels clear of obstructions.

Finally, the diversion would seem to be a regulation of interstate commerce because it constitutes a regulation of the amount of water flowing in interstate commerce. It is unnecessary to say that all water moving naturally across State lines is in commerce. The waterway is a manmade interstate transmission line, just as would be a large pipe. For Congress to control such an artificial movement of water is as much a regulation of commerce as if the commodity were oil or gas. The power of Congress to determine the amount of a commodity which may move in interstate commerce cannot be doubted. (Mulford v. Smith, 307 U. S. 38 (1939); Wickard v. Filburn, 317 U. S. 111 (1942).) II. Authorization of additional diversion would not violate the constitutional barrier to giving a preference to the ports of any State

The argument that authorizing an additional diversion from the lakes into the Chicago Waterway will be a violation of the constitutional provision prohibiting preferences between ports of different States has no substance (art. I, sec. 9, clause 6). To say that allowing more water to flow into the Chicago