ILLINOIS v. MICHIGAN

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Argument of Charles A. Bane

Chief Justice Earl Warren: Number 15, Original, State of Illinois, Plaintiff, versus States of Michigan, Ohio, Pennsylvania, Minnesota, New York and Wisconsin.

Mr. Bane, you may proceed.

Mr. Charles A. Bane: Mr. Chief Justice, may it please the Court.

Illinois is here seeking leave to file a complaint for a declaratory judgment and an injunction whereby it is asking that this Court declare Illinois' rights to take an imperceptibly small amount of water from Lake Michigan through the State's instrumentality, the Elmhurst-Villa Park-Lombard Water Commission.

The matter we maintain is one of immediate urgency in order to meet the needs of approximately 90,000 people to be served by the commission with water for drinking, hygienic, sanitary and life and industrial-commercial purposes, all of which can be aggregated under the phrase, "domestic pumpage."

The amount which is proposed to be taken over the next 20 years will be about at the level of 25 to 30 cubic feet per second, which is the manner in which you measure taking of water and if that amount is expected to grow, so that by the year 2000, it will still be only in the range of about 50 cubic feet per second.

Justice Potter Stewart: Did you include industrial purposes or (Voice Overlap) --

Mr. Charles A. Bane: Light industrial purposes, Your Honor, yes.

There is no heavy industrial activity in this area, or which will be served by the commission.

Justice Potter Stewart: What -- what makes the difference?

Mr. Charles A. Bane: Sir?

Justice Potter Stewart: What makes the difference between light --

Mr. Charles A. Bane: Between light and heavy industrial?

Well, we simply don't have anything in the nature of a steel works, anything -- an automobile assembly plant, nothing that would be in the -- in that range.

I think the distinction is probably not important except that Justice Holmes, in Wisconsin against Illinois, expressed the general kind of reservation as to whether domestic pumpage purposes would include heavy industrial use.

Mr. Charles A. Bane: That's the only reason that we make the point that it is light industrial use indubitably, as we've alleged in our complaint, which is involved here and which is in this area.

Justice Potter Stewart: Do any of the -- do any of the municipalities involved have zoning that would permit heavy industry?

Mr. Charles A. Bane: Well, I'm not sure that I can answer that, Your Honor.

Justice Potter Stewart: All they think were not the old cases.

Mr. Charles A. Bane: I think that is -- I think that is probably so.

However, the -- the nature of the communities now is primarily really residential as we've alleged in our complaint.

There is a commercial operation, of course, in connection with the residential character of its community.

The light -- the industrial activity is really only incidental.

These communities are residential communities within the Chicago suburban area.

They are commuter communities, if you please, with some incidental commercial and industrial activity.

Justice Potter Stewart: So-called, "dormitory community?"

Mr. Charles A. Bane: Yes, sir.

Justice William O. Douglas: What was the -- what was the pumpage for water supply in the 1930 decree?

As I remember that was 1700 cubic feet per second.

Mr. Charles A. Bane: In the 1930 decree, Your Honor, the City of Chicago was ultimately to be restrained, I think, beginning with the year 1938 to 1500 cubic feet per second as direct diversion.

And there was evidence in the 1930 case that the taking by the City of Chicago for domestic purposes was in the range of about 1700 cubic feet per second.

So, that in the case of Chicago, and -- and when you're talking about the -- the facts involved in the 1930 decree, you're talking about 3200 cubic feet per second, which of course --

Justice William O. Douglas: Of which 1700 was for drinking purposes?

Mr. Charles A. Bane: That is correct, sir.

Yes.

Justice William O. Douglas: Household use?

Mr. Charles A. Bane: That's correct.

And I will come to the point, Your Honor, with respect to the reservation in the 1930 decree with respect to domestic pumpage.

Justice William O. Douglas: Now, these cities are not in the Chicago metropolitan area or are they?

But when they are (Voice Overlap) --

Mr. Charles A. Bane: They are a part of the Chicago metropolitan area, but they are not a part of the Chicago Sanitary District and they have their own sewage disposal facility.

Justice Felix Frankfurter: Were they part of it in 1930?

Mr. Charles A. Bane: Sir?

Justice Felix Frankfurter: Were they part of it under the 1930 decree?

Mr. Charles A. Bane: No, sir.

They were not.

Justice Felix Frankfurter: These are new communities?

Mr. Charles A. Bane: Relatively new, certainly not served by the -- by the Metropolitan Sanitary District of Chicago.

Those comparisons, incidentally, I think might give the Court an idea of what we're talking about here.

If I could just repeat, we're talking about 25 to 30 cubic feet per second by comparison with that 1700 cubic feet per second which Chicago was taking in 1930 for domestic purposes and by comparison, 30 to 50, by comparison with 1500 cubic feet per second, which the 1930 decree ultimately allowed to Chicago for direct diversion down the Sanitary Canal.

Justice William O. Douglas: Had -- hasn't -- hasn't the need for the use of this water for sewage disposal -- think decreased over the years or has it increased?

Mr. Charles A. Bane: The need of -- of the direct diversion that has been taken by Chicago?

Justice William O. Douglas: Yes.

Mr. Charles A. Bane: Well Your Honor, I don't know that we can -- we can respond for that because that of course is not --

Justice William O. Douglas: Well, your --

Mr. Charles A. Bane: -- it's not an issue on this proceeding.

Justice William O. Douglas: Well, but your -- you -- we can't divide you or something, you're still Illinois.

Mr. Charles A. Bane: Yes, sir.

Justice William O. Douglas: You can't put on just the different half and say on different part of Illinois.

Mr. Charles A. Bane: No, sir.

We're not -- we're not attempting to although we do maintain that the issue within Numbers 2, 3 and 4 are different from and distinct from the issue in this Number 15.

Justice William O. Douglas: Why is that?

Mr. Charles A. Bane: Well, basically the -- basically the proceeding in Number 2, 3 and 4 as Your Honor knows, was a proceeding which goes to the need for direct diversion of water from Lake Michigan by the State of Illinois in order to cleanse out the sanitary canal and the Illinois waterways.

The primary purposes or the primary concerns in that --- in that proceeding were with respect to sanitation and the efficient operation of the Sanitary District and with navigation.

Now, either one of those is any kind of an issue in this case which has to do simply with the right of these communities Illinois on behalf of these communities to take water for domestic purposes.

There's no issue with respect to navigation.

These communities are not within the Sanitary District.

They do not discharge their effluent into the sanitary canal.

The -- there is no -- there is no -- no problem with navigation or sanitation on sanitary canal.

Justice William O. Douglas: I know but when you're looking at the global amount to be allowed from -- taken from a -- from a lake you'd -- I think we have to consider the global needs for the use of that water and if too much water is being taken the -- for the sewage purposes it could be -- the formula could be change if you're taking for drinking purposes.

Mr. Charles A. Bane: Sir there isn't any question that the Court can concentrate on the aggregate amounts that are being taken by Illinois.

We certainly maintain however, that when you consider what is being proposed here to be taken even if you added in what is being taken under the 1930 decree and being taken by the City of Chicago, we have -- we add such an imperceptible amount to the taking by Illinois that we are fully entitled.

We -- we maintain to have come -- come within the day to be permitted to do what we proposed to do.

Actually, if you -- in order to give the Court an idea of the effects of these takings on the -- on the lake levels, it is generally agreed that taking about 1000 cubic feet per second would have a permanent effect on the lake levels of about five eights of an inch.

The army engineers' estimates which were put into the House Committee record on the hearings on House Bill 1 which had been pending before the Congress to authorize an experimental diversion of the thing 1000 cubic meters in Chicago.

The army estimate put into that hearing range from a permanent effect of one quarter of an inch to one inch.

But generally prior to the time of those estimates were put in it was taken that a drawing of 1000 cubic feet per second would have an effect on the lake of five eights of an inch.

That's not an annual effect.

That's the permanent effect once a taking has been established.

That again, we ask the Court to compare with the proposed taking here of some 30 cubic feet per second, if 1000 cubic per second only affects the lake levels to five eights of an inch then we think we certainly are correct when we say that the taking of 30 cubic feet per second would have an imperceptible effect on the lake levels.

Well, if this amount which is proposed to be withdrawn is insignificant and imperceptible in terms of its effect on the lake levels, it's certainly is not insignificant.

We maintain in terms of the needs of the communities which are vital significance.

These communities which organized the commission the Elmhurst-Villa Park-Lombard Water Commission and which in the main are the communities which are to be served by the commission help and serve and are now being served by ground wells which are proving to be inadequate for the present needs of the people.

The needs of the people have exceeded the water supply that is available from these underground sources.

The water level in the existing wells has been dropping at an average of from 7 to 10 feet per year.

And during the year 1958, in fact, there was a recession of water levels to the extent of 20 to 30 feet.

Wells have been drilled deeper and deeper and pumps have been set lower and lower until at the present time the pumps have been set at the lowest practicable setting.

And the wells themselves are now at a depth of approximately 1800 feet at 2000 feet it has been found that salt water is reached and the result is that the wells are at the lowest possible point for any type of use.

Justice Hugo L. Black: Do you know whether that problem is peculiar to Illinois or is one that is prevalent throughout the country?

Mr. Charles A. Bane: Your Honor I don't know that and I think -- I think it is also would be fair to say that it is not prevalent throughout Illinois.

It's certainly is true however with respect to this area which is to be served by this Commission.

There is evidence and it could be demonstrated that as you go westward from these communities, the wells are likely to be adequate or seem to be adequate according to engineering estimate for the present needs of the people.

But in this particular area to be serve by this Commission, there is this inadequacy which can't be solved by setting the wells any lower, it can't be solved by any additional wells because if you sink additional wells you simply divide up by wells the existing supply and do not in fact increase that supply, so with that of course no alternative.

Justice Felix Frankfurter: May I trouble you to tell us what the purpose of the village which you referred in suspending in Congress?

Mr. Charles A. Bane: Yes, sir generally --

Justice Felix Frankfurter: -- sponsored by Illinois?

Mr. Charles A. Bane: Yes, sir.

Yes, sir.

Justice Felix Frankfurter: What is the bill?

Mr. Charles A. Bane: Congressman O'Brien sponsored the bill, it's House bill number 1, to which the dominion of Canada has objected authorized -- which would authorized for a period of one year a direct diversion of an additional 1000 cubic feet per second down the Chicago sanitary canal and into the Illinois waterways.

Maintained by the Illinois congressional delegation would be necessary in order to observe the effects on navigation, on sanitation to the canals and also to observe the effects which Illinois maintained would be insignificant in terms of any effect on the lake level.

Justice Felix Frankfurter: The diversion sought by that was unrelated to what Illinois is contemplating to this State, is that right?

Mr. Charles A. Bane: Completely unrelated, Your Honor.

Justice Felix Frankfurter: Except that you want 1000 more that this 1930 decree allows.

Mr. Charles A. Bane: Well, Illinois as a state is of course acting through the legislative processes to see whether it can secure the approval.

We are appearing here for a much less significant amount and an amount which will have nothing to do, which will not be a direct diversion matter in any sense but which in fact is necessary for the needs.

Justice Potter Stewart: But -- but do I establish saying this that the pass would authorize this diversion for only one year?

Mr. Charles A. Bane: Sir?

Justice Potter Stewart: Would authorized that diversion for only one year?

Mr. Charles A. Bane: That is correct sir.

Yes, it would be an experimental thing.

Justice Potter Stewart: Experimental.

Mr. Charles A. Bane: As we understand it, yes.

Justice Potter Stewart: Illinois find to demonstrate that you could be allowed another thousand without affecting lake level?

Mr. Charles A. Bane: That's basically it Your Honor, yes.

The -- the experiments would be observed as I understand the bill by the Army Corps of Engineers so that the Federal Government would be the -- the agency which would be observing the effects.

Illinois isn't proposing that it itself be the observer.

Justice Felix Frankfurter: That Canada stated the ground of the company?

Mr. Charles A. Bane: I don't know that it has sir.

It has expressed its views through the State department which in turn of course --

Justice Felix Frankfurter: Publically I mean.

Mr. Charles A. Bane: Yes, sir.

Yes, sir.

Those views intended --

Justice Felix Frankfurter: Could you state that in a sentence?

Mr. Charles A. Bane: Sir?

Justice Felix Frankfurter: Could you state there a ground of opposition in a sentence?

Mr. Charles A. Bane: I don't know that -- that they made it -- made it specific.

I don't know that they -- they expressed it in terms of -- in fact I'm quite certain that they did not expressed it in terms of effect on water power anything of that character.

They simply said that they had an interest and that they were unwilling to see this diversion take place.

I think that's the way in which it was communicated through Congress by the -- by the State Department.

Justice Charles E. Whittaker: Mr. Bane --

Mr. Charles A. Bane: Yes, sir.

Justice Charles E. Whittaker: -- may I ask you please?

I'm sure I do not understand you.

I understood you to say that the withdrawal of an additional 1000 cubic feet per second would have an effect upon the lake level of five eights of an inch.

Mr. Charles A. Bane: That is correct.

Justice Charles E. Whittaker: You'd said that that was not annual.

Now, I don't understand is that to be the immediate effect of the withdrawal of that much water?

How is it to be use to be supplied?

How -- how do you get to the idea that -- that the withdrawal of 1000 feet -- cubic feet per second would affect the lake level only five eights of an inch permanently?

I don't see, I don't understand.

Mr. Charles A. Bane: Your Honor these are Army Corps of Engineers estimates and evidently what takes place is that as you divert, of course I assume the -- I assume that the effect would be -- would be felt almost immediately as the diversion was brought about.

You achieve a -- or you -- you bring about a reduction in the lake levels but then you strike a balance as between the taking and then all of the sources which feed into the lakes.

You strike a balance so that once -- once that initially effect has been felt for five eights of an inch, once you felt that then -- then there is nothing further beyond that.

That's the reason I gather.

I am more participated in any of these studies made by the Army Corps of Engineers but that is the reason I gather that once the effect is felt that's the effect, it isn't repeated, it isn't five eights of an inch year after year but it is the same effect maintained throughout the years from many give and taking.

1000 cubic feet of course was not adapted as the standard.

Actually, it happens to be a healthy standard, I mean a -- a usable standard.

I think it was adopted as a standard because it was -- the information was being given to the Congress in connection with this proposal in House Bill 1 for an addition of diversion experimentally of 1000 cubic per second.

Justice Charles E. Whittaker: It's quite obvious, isn't it, that the use of 1000 feet per second would not in standard reduce the level of Lake Michigan by five eights of an inch, it takes some time (Voice Overlap) --

Mr. Charles A. Bane: That's correct sir.

Of course, sometime -- sometime it would be required.

Justice Charles E. Whittaker: But that's the maximum that would -- the -- of the reduction and applies from other sources would prevent it going lower than five eights of an inch over permanent usage, is that what we understand?

Mr. Charles A. Bane: That -- that is our understanding Your Honor which I will qualify only by saying as I did before that the range of the estimate seems to be of a quarter of an inch to one inch.

But by enlarge there was a settling on five eights of an inch as the probable effect of the diversion of that much 1000 cubic per second.

Justice Charles E. Whittaker: And you seek the right to use 25 to 30 cubic feet per second.

Mr. Charles A. Bane: That's correct sir.

Justice Hugo L. Black: Can they express any interest in this litigation?

Mr. Charles A. Bane: None whatsoever sir, no.

The Solicitor General as you know has filed a brief amicus and we take it that if Canada had adopted the position on this, it would have been expressed and transfer them to the Court by the Solicitor General.

So there's been no expression for opinion on -- on this.

I will just to add with respect to the Statement of facts that -- that I gave with respect to our situation here that they are of course there is no -- no record in this proceeding since we are here now on our motion for leave to file a complaint.

These facts which I have given are set forth in our complaint which we seek to file and also there is certain engineering data which is contained in two affidavits which we filed in connection with a motion which this Court denied for summary judgment.

These affidavits and the complaint in our reply brief all amply demonstrate that in order to meet this situation with which Illinois was confronted in these communities, there is no adequate source of water now available to them except Lake Michigan.

It's not just a matter of preference it's not just a matter of wanting to turn the Lake Michigan because of the purity of the water or the quality of it.

The fact is according to these engineer's affidavits and the allegations in our complaint, the fact is that there is no alternative source of water for these communities whose wells are now proving to be inadequate, there is no source of water for them --

Justice Felix Frankfurter: When did this (Voice Overlap) --

Mr. Charles A. Bane: -- except the lake.

Justice Felix Frankfurter: -- (Voice Overlap) I think --

Mr. Charles A. Bane: It came to ahead, Your Honor, in about the year 1957.

About -- just about two years ago.

And at that time, the street communities organized as they were authorized to do under Illinois local law -- statutory law, the commission which we have referred to here.

Just to give you a little further orientation on the matter geographically Elmhurst is the nearest of these communities to Lake Michigan.

It's approximately 16 miles inland to the west of the City of Chicago.

Villa Park then joined Elmhurst on the west being there for a little bit further away from the lake and Lombard in turn then adjoins Villa Park on the west.

Of these were the three communities which organized the commission, which was setup pursuant to Illinois statutory law to construct the system for a common supply of water and to construct the necessary water mains leading from the source of water to the municipalities.

The commission had authority to finance construction of its system to the sale of revenue bonds payable from revenues derived by the commission under its water contracts.

The commission took a number of steps in the latter part of 1957 and throughout the year 1958.

It contracted.

It determined first of all in accordance with the engineering studies which had indicated that Lake Michigan was the only available source of water.

The commission contracted for the purchase of a site on the shore of Lake Michigan within the village of Glen Cove for a water intake and pumping station.

It contracted for the purchase of a site a little further inland for a filtration plan and contracted also for an easement for its water mains most of which would run along the right of way of the Chicago and northwestern railroad all within Illinois.

The transmission mains were to be approximately 14 miles in length and would be required to carry the roll water from Lake Michigan at the intake point in Glen Cove through the commission's proposed filtration plant.

The treated water was then to have been transmitted by the commission to the municipal boundaries of its customers.

The location of these facilities is set forth on a general location map which is included as a part of our motion for reason to file.

Justice Felix Frankfurter: Mr. Bane, is it true whether there maybe other Illinois municipalities in this fix were about to be.

Mr. Charles A. Bane: We -- we think not Your Honor.

So far as this proceeding is concern of course there is nothing in the complaint nor nothing or anything in such of a record as we have that relates to anything to any -- anybody except these three communities.

I might just say that it's unlikely, quite unlikely that there would be any -- any demand by the communities to the east of these communities between these communities and the City of Chicago because those communities are now being served with Lake Michigan water.

They are not taking it directly but they are being served by the City of Chicago with Lake Michigan water.

And that comes right up almost that -- that service of Lake Michigan water comes almost up to the eastern boundary of these communities.

As you go west from these communities, the -- the engineering data seems to indicate that the wells with which these communities are being served are adequate and are likely to remain adequate for the foreseeable future.

Still further west we get into the Fox River Valley area where the communities are served by a combination of wells and the Fox River and the engineering data seems to indicate that that is an adequate source of supply for those communities.

Now, in state in Illinois 100 miles away 125, 150 miles away there have been water problem but in no instance of course has there been any proposal that those communities would come to Lake Michigan.

They have gone to the Illinois River or they have found wells in one case an industrial plant rather ingeniously takes water from an ample source underground puts it into a river uses the river then, the riverbed is the transmitter of the water and takes it back out of the river some 15 or 20 miles down the stream.

All ingenious, but none of it, none of it calling for any turning to Lake Michigan as the --

Justice William J. Brennan: Well, if the -- if this municipalities to the east not part of Chicago are being served by Chicago.

Mr. Charles A. Bane: Yes they are, sir.

Justice William J. Brennan: These are reasons why these three compatibly served by Chicago.

Mr. Charles A. Bane: Engineering wise, it -- it was -- it would not have been easy and after a full study had been made it seem to these communities that it was better for them to go directly to this site which was available to them and that's how it came.

Justice William J. Brennan: Well would suggest that the alternative is not impossible, however?

Mr. Charles A. Bane: The alternative is not impossible, Your Honor, no.

Of course, you understand that if that alternative were adopted, these communities would be taking Lake Michigan water, they would be getting it via Chicago, but --

Justice Felix Frankfurter: But not additional Lake Michigan --

Mr. Charles A. Bane: Sir?

Justice Felix Frankfurter: -- but not additional Lake Michigan is important.

Would they --

Mr. Charles A. Bane: Well, it would be -- it would be water which is not now, it would be water from Lake Michigan Your Honor which is not now coming to them.

Justice Felix Frankfurter: Not beyond the -- the allocated amount.

Mr. Charles A. Bane: Well, there is --

Justice Felix Frankfurter: In other words, they could -- they could -- I don't think there's a potential supply not yet use by Chicago which could be drawn from it, is that it?

Mr. Charles A. Bane: Well there's a potential supply on the lake of course.

Actually there has been no allocation to Chicago --

Justice Felix Frankfurter: Of limiting --

Mr. Charles A. Bane: -- of an amount for domestic pumpage the limitation as Your Honor knows of course is in terms of the direct diversion down -- down the canal.

The -- the commission just to take another minute to -- to outline the steps which they have taken in order to get themselves get -- get itself ready to serve these communities, the commission set about after it -- it entered into these contracts set about getting all the permits that were necessary and did get a permit from United States Corps of Engineers and the Department of Public Works of Illinois, the State Sanitary Water Board, the Village of Glen Cove all that permits which the complaint alleges were needed.

The commission also adopted an ordinance for the issuance and sale of more than $18 million principal amount of water revenue bonds and contracted to sell such bonds to a group of investment bankers.

But before the bonds could be sold and their delivery consummated, the State of Michigan, in the early part of October 1958, through its Attorney General, directed a letter to the commission a copy which is included in our motion for leave to file, which stated that unless the commission desisted from its intention of diverting water from the Great Lakes basin, the State of Michigan intended to institute such proceedings as might be necessary to protect what it called its interest, “For the halting of the your propose abstraction of water from the Great Lakes.”

Justice Felix Frankfurter: Sorry, what's the date of that?

Mr. Charles A. Bane: It was early October 9, 1958, Your Honor.

Justice Felix Frankfurter: That was after Michigan try to take up this thing by way of negotiation with the old governor, is that right?

Mr. Charles A. Bane: Well, it was after the dispatch of letters through the governor.

Justice Felix Frankfurter: Offered negotiation.

Mr. Charles A. Bane: Yes, sir.

Justice Felix Frankfurter: Is that an unfair technique?

Mr. Charles A. Bane: I think it was -- I think that's not unfair.

It was an offer of negotiation and actually there were negotiations, Your Honor, after the letters were received.

Trips were made by representatives of the Attorney General's office in Illinois to Lansing and to Detroit and an attempt to sit down to work the matter out.

But as you can gather from our presence here, it has not been worked out.

We -- the commission received not only a letter from Michigan, but also received one shortly after the Michigan letter from Ohio through its Attorney General and then also from Pennsylvania, through its Deputy Attorney General.

And there were indications at a point in these conferences that were taking place that the other states which Illinois has joined in this action, Minnesota, New York, and Wisconsin would take similar action.

I wouldn't mislead the Court, however and there had not been formal letters of protest against this commission's action by those latter -- those latter three states.

But there were the formal letters of protest by the three States of Michigan, Wisconsin -- Michigan --

Justice Felix Frankfurter: Chicago --

Mr. Charles A. Bane: Ohio and Pennsylvania.

And as a result of that, the investment bankers determined that they were unable to proceed and the result is that this project of the Elmhurst Commission has now been effectively stopped as a result of the letters and the threats of -- of these other three regulated states.

And that is the point which we stand now.

There was a period during which we attempt to negotiate as I indicated to Mr. Justice Frankfurter of that having falling through it seem to us that we have no alternative except to seek relief through an original action in this Court and we accordingly filed our motion for leave.

Now at the outset, I'd like to outline three basis on which Illinois believes that it has set forth a cause of action in its complaint anyone of which we believe is -- is persuasive in determining Illinois' rights in this -- in this respect.

The approach which this Court has been taking on problems of allocation of water has been that of what is known as the doctrine of equitable apportionment which has been applied by this Court in proceedings involving states whether those states are western states following internally the doctrine of prior appropriation or whether those states are middle western and eastern states which generally follow the doctrine of riparian rights.

In either case, without regard to what type of state you may be dealing with so far as local internal water rights determination are concern, this Court has approached the problem as being one of equitable apportionment.

The Solicitor General in his brief amicus filed here has been in agreement that that has been the approach of this Court and the decisions clearly show the point the two most important ones that this Court knows being Connecticut against Massachusetts having to do with the diversion of the waters of the swift Delaware into the Boston area and New Jersey against New York having to do with the diversion of Delaware waters into the Hudson River watershed for New York City.

The cases that have come before this Court under the doctrine of equitable apportionment have in some case has been hard cases.

And New Jersey against New York with such a case, there was great need on the New York side and yet there also was a prospect of substantial and serious harm downstream to the sovereign states of the rights of the sovereign States of Pennsylvania and New Jersey.

And the result was that this Court's decree in that case was protective of those downstream rights by imposing certain restrictions upon New York in a way of requiring certain measures to be taken for the maintenance of flow and low water periods and the like so as to minimize the harm downstream, balance that with the benefits to be achieved by the taking by New York thereby achieving a true division in accordance with equitable apportionment.

That's the type of hard case we say which this Court has had.

This case we think is no such hard case.

Primarily, because the doctrine of equitable apportionment really doesn't have to be brought into play unless you've prove damage.

It's when you have damages on the one side that you have to line up that disadvantages the harm on that side as against the benefits on the other and having line those up, then the Court has to reach its conclusions as to where it thinks the equitable apportionment of the line.

But here, there is no damage this taking of 25 to 30 cubic feet per second from the lake producing an imperceptible effect on the lake is going to produce no damage of any kind to the other Great Lakes States.

And consequently, we maintain that the doctrine of equitable apportionment really has no place here, because there isn't anything which you have to line up in the way of detriment to the other states against these benefits and this urgent need of our communities for this water which we're proposing to take.

But even if you did consider that the doctrine was -- was to be applicable, it is clear and you have established in Connecticut against Massachusetts that the taking of water for the purposes for which we are proposing to take it is the highest possible use to which water can be devoted.

Taking of water for drinking and domestic purposes, this Court said, is the highest possible use.

And that being so, if you take on the one hand the fact that we are taking water for the highest possible use and we have an urgent need for it, that it would certainly seem clear to us that the doctrine of equitable reapportionment would require that you approve the allocation of this amount of water.

That --

Justice William O. Douglas: Since I've been on the Court, I -- I remember various decrees that have been submitted which have approved entered sanctioning the various kinds of sewage disposal plans directly from the -- this district and presumably, decreasing the need for the amount of water that was originally allocated for sewage disposal in the 1930 decree.

I don't know.

I'm just wondering why these 15 cubic feet you are now on isn't taken out of the 100 and -- out of the 1500 that was originally assigned for sewage disposal.

Mr. Charles A. Bane: Well sir, there's no way in which we could take advantage of that water itself.

I mean, I -- I appreciate that you're probably referring to a general taking from the lake.Of course, the 1500 cubic feet is being diverted directly down the Chicago River and sanitary canal.

That has -- that -- that we couldn't get at.

There just no -- there is just no way in which it would be any physical facilities, and of course that -- that becomes a -- that becomes a part of the Illinois waterway into which the Sanitary District is just discharging its effluent.

Justice William O. Douglas: I -- I think it would be easier to get that when it might be to get a decree from this Court increasing that --

Mr. Charles A. Bane: Well sir --

Justice William O. Douglas: I don't know why -- why Illinois -- have you -- have you -- has Illinois examined that, explored that phase of it?

Mr. Charles A. Bane: Well the engineers Your Honor explored every possible alternative.

And the alternatives really, I think, as I indicate it to Justice Brennan are to go to Chicago directly for -- for water in which case, you're still going for Lake Michigan water or to go directly to the lake itself which is what these communities did.

Actually the -- just to give a little of the circumstance, the -- the happenstance that there was a -- a rather long line of -- of Chicago and Northwestern Railroad available for transmission line was a very happy circumstance here.

It made it simple to cut across country with a transmission lane, I say across country actually, these are build up areas to cut across with the transmission lane so that -- that would have been -- that proved to be or the engineers concluded that that was the -- the sensible way really in which to do this.

Justice Hugo L. Black: Well, would you have to ask for anymore water?

Mr. Charles A. Bane: Sir.

Justice Hugo L. Black: Would you have to ask for anymore water, Chicago would have furnished it.

Mr. Charles A. Bane: Well, sir if we -- if Chicago were to furnish it, I think it would -- I think it would simply add on.

Justice Hugo L. Black: I'm not -- I -- I mean though would it be necessary to add a more -- an allowance of more water in order for Chicago to supply these communities?

Mr. Charles A. Bane: Well, Chicago in turn, I think would take a little more from the lake.

Justice Hugo L. Black: I understand it would take more, but is it not allowed to take more under the apportionment now?

Mr. Charles A. Bane: I think that -- I think the answer to that Your Honor depends on whether these Southern Great Lake States would then protest to Chicago for that imperceptible, small, low amount of additional taking that Chicago would take.

Justice Felix Frankfurter: Would cover it, would -- would Chicago have to obtain permission or which it be -- be within her unkept resources?

Mr. Charles A. Bane: I think it depends on how you would interpret your 1930 decree.

Justice Felix Frankfurter: That -- that is my question Mr. Bane.

Mr. Charles A. Bane: You -- you have entered a decree with respect to Chicago actually of course it runs to the State of Illinois and its employees and agents in which you have said that Illinois is to be allowed to take for that direct diversion purposes beginning in 1938, 1500 cubic feet in addition to domestic pumpage.

It would certainly seem to be a recognition of Chicago's rights to take for domestic pumpage.

Actually, we maintain that that decree in Wisconsin against Illinois constitutes a precedent for a taking for domestic pumpage purposes without limitation.

And the language of the decree is broad enough, Your Honor, so that it's not really confined simply to that taking for that particular purpose.

And it -- and therefore be argued that there is a general right established by that decree in Illinois to take water for domestic pumpage.

Justice Hugo L. Black: Then -- then -- then why this proceeding?

Mr. Charles A. Bane: Sir?

Justice Hugo L. Black: Then why in this proceeding?

Why it shows that under the 1930 decree?

Mr. Charles A. Bane: Well we are face of course here, with these threats which we have received from the other Great Lakes States.

Justice William J. Brennan: But you could justify it as I understood your argument, do I get it correctly?

That you could justify what you're now taking under the 1930 decree?

Now, if you just said that Illinois could?

Mr. Charles A. Bane: Yes.

We -- we don't really claim that the 1930 decree is res judicata or determinative.

We -- we really take the position I think that that's a precedent in favor of this kind of taking.

If we had tried to raise this question in the 1930 decree and of course we -- we appreciate that at the port of the decree, there is a general reservation whereby the decree can be reopened.

But if Illinois had attempted in that proceeding to raise this question, we'd be in a kind of an anomalous position I think, attempting to raise there something which we claim really has -- has already been established as a precedent.

Justice Felix Frankfurter: Let me ask you this question if I may, Mr. Bane.

Suppose these communities which I understand are -- are self-contained, legally self-contained communities, are they?

Mr. Charles A. Bane: That's correct sir.

Justice Felix Frankfurter: And not part of the municipality of that for the State of Chicago?

Mr. Charles A. Bane: That is correct sir.

Justice Felix Frankfurter: Suppose five years ago, these communities had in fact been annexed to Chicago and had become part of the municipality of Chicago, would -- that would have been possible.

Mr. Charles A. Bane: Yes, sir.

Justice Felix Frankfurter: Then you wouldn't have taken this mode of getting relief for those communities and their water needs would you?

Mr. Charles A. Bane: No.

We wouldn't have adopted this method.

Justice Felix Frankfurter: What -- what would you have done?

Mr. Charles A. Bane: We probably would have assumed unless there had been protest.

Incidentally when I say that these communities could have become a part of Chicago, something would have to be done about the intervening areas as well, Your Honor, because there has to be contiguousness for annexation.

But, assuming that all of that has been taken care of, we would -- I --I assume that these communities then would have -- would have made their arrangements when their wells began to run dry for a taking of Chicago water.

But I think it's entirely possible that these Great Lakes State --

Justice Felix Frankfurter: Would that protest to the same nature?

Mr. Charles A. Bane: Would have protested in exactly the same way, Yes, sir, because it's Lake Michigan water that we're talking about no matter how you -- how you take it.

Chief Justice Earl Warren: Is there any protest when these other communities that are just to the east of these communities got their water for a similar purpose?

Mr. Charles A. Bane: So far as we know, Your Honor, there has been no protest.

No.

Chief Justice Earl Warren: And they came from Chicago water?

Mr. Charles A. Bane: That they are being served with Chicago water which is Lake Michigan -- Michigan.

Chief Justice Earl Warren: They are not -- they are not in the geographical limits?

Mr. Charles A. Bane: No, sir, they are not.

I think, generally speaking, when we -- when there is -- when the -- when statistics are presented with respect to the amount of water that's being taken for domestic pumpage purposes and these statistics are of course in Numbers 2, 3 and 4 which are -- which is before your -- before the Court on a petition by the -- of the Great Lakes States for reopening.

The 1700 cubic feet per second which is taken as Chicago's taking is of course -- it -- it does include the amounts which Chicago takes for supply to these other communities.

So that I think that there's a general recognition that Chicago is doing that for the other communities and account is taken in the figures of how much -- of -- of what is supplied to the other communities.

Justice Hugo L. Black: But they do take it out of the 1700 feet?

Mr. Charles A. Bane: That is -- it is included within the 1700.

Yes, sir.

Yes, sir.

Justice Hugo L. Black: Well, then --

Mr. Charles A. Bane: That's my --

Justice Hugo L. Black: -- Mr. Bane, within the 1700 or within that which is described as the domestic uses for or are they the same thing?

Mr. Charles A. Bane: It's with -- it's the same thing, Your Honor, yes.

But, statistics are often presented as to what it is that Chicago is taking for domestic purposes.

Justice William J. Brennan: Well, but I don't --

Mr. Charles A. Bane: And usually --

Justice William J. Brennan: -- quite understand.

It's just this.

If the servicing by Chicago and these other communities to which west -- east of these three is within the description of for domestic uses under the 1930 decree, why can't the same basis be use to justify the taking of the service of these three communities?

Mr. Charles A. Bane: Well, we are trying to use the same basis, Your Honor.

What -- what we're -- what we're trying to do however is not to get ourselves -- not to get this proceeding into that proceeding.

And actually --

Justice William J. Brennan: Except that this use would be equally domestic uses.

Mr. Charles A. Bane: Exactly.

Justice William J. Brennan: If those of the --

Mr. Charles A. Bane: Of course, sir.

Of course.

Justice William J. Brennan: -- communities to the east of (Inaudible)

Mr. Charles A. Bane: That's correct, sir.

Justice Felix Frankfurter: But not --

Mr. Charles A. Bane: We maintain that.

But we may --

Justice Felix Frankfurter: But not for Chicago.

Mr. Charles A. Bane: Sir?

Justice Felix Frankfurter: But these uses are not for Chicago.

Mr. Charles A. Bane: These are not for Chicago's use, sir.

Justice Felix Frankfurter: That's (Voice Overlap)

Mr. Charles A. Bane: No sir.

No, sir.

They are not.

Justice William J. Brennan: But any of the other communities to the east of these three are they?

Are they for Chicago uses?

Mr. Charles A. Bane: Well, they are separate municipalities but they are supplied by Chicago.

Justice William J. Brennan: I know but within the decree, are they -- are they Chicago uses?

Mr. Charles A. Bane: So, it has been assumed evidently and there's been no protest.

Justice William J. Brennan: Well, would there be any reason what then -- why these three, in servicing these three communities, would not also be Chicago uses?

Mr. Charles A. Bane: If -- if these three communities made an arrangement for taking water from Chicago, we assume that then -- then that would be embodied within the terms of domestic pumpage as authorized for Chicago.

Yes, sir.

Chief Justice Earl Warren: Well, -- well would it then come out of the 1700 second feet or not?

Mr. Charles A. Bane: Your Honor, I may have misled you.

The 1700 cubic feet hasn't been established as a limitation.

That's just a statistic which gets mentioned as to the amount which Chicago is taking for domestic pumpage purposes.

There is no limitation established anywhere on what Chicago takes for domestic pumpage.

Justice Felix Frankfurter: Domestic -- what it takes for domestic purpose is a function of its need.

Mr. Charles A. Bane: That is correct sir.

Justice Charles E. Whittaker: In fact what is limited upon the service by the decree to limits of Chicago?

Mr. Charles A. Bane: The decree does not limit it to Chicago, no.

Paragraphs one, two and three of the decree run to the State of Illinois.

What they do is establish the amount which shall be taken by direct diversion and establishes a certain amount Your Honor for the -- for the first beginning years after the day of the decree, then another amount, and then it gets down to the 1500 cubic feet for direct diversion.

That's water that's being diffused to flush out the water waste in effect.

But in each case, the decree says that that amount which is authorized is in addition to domestic pumpage.

Justice Charles E. Whittaker: Well, I couldn't.

This domestic pumpage is the -- is that in your recording, domestic pumpage was then of the City of Chicago or the needs of Illinois?

Mr. Charles A. Bane: Well, we maintain -- that is the needs of Illinois, Your Honor, yes.

And that's why we say that the decree in Wisconsin against Illinois which is the title of the -- this proceeding in which the decree was entered, we say that that decree does in fact constitute a precedent and a recognition by this Court that Illinois is entitled to take from Lake Michigan water for domestic purposes.

Justice Felix Frankfurter: Mr. Bane, may I put a question that, we've been circling around at this (Inaudible)

Mr. Charles A. Bane: Yes, sir.

Justice Felix Frankfurter: -- and I can put it briefly and you can -- I know you'll be able to answer briefly, as I understand it, you said you agree that the domestic taking is not defined by cubic feet but is a function of the needs of Chicago.

Mr. Charles A. Bane: That is correct, sir.

We believe --

Justice Felix Frankfurter: Despite that or within that right of Chicago, she may service communities that are not actually part of the Chicago municipality.

He does, doesn't he?

Mr. Charles A. Bane: Yes, sir.

Justice Felix Frankfurter: Now what I want to know is this.

Why -- what is the reason, is this legal or engineering for some other combination that she doesn't service these three communities the way she service others and draw underwater which is entitled to draw for domestic purposes?

Mr. Charles A. Bane: Well, it's primarily an engineering matter, Your Honor.

But of course, you understand that the need doesn't for these communities until a couple of years ago when it began to develop that the wells were inadequate.

Justice Felix Frankfurter: Well, the --

Mr. Charles A. Bane: If that --

Justice Felix Frankfurter: -- power to supply doesn't -- in the question of had no chronological limitation, does it?

Mr. Charles A. Bane: The power to supply does not know.

But actually, when the problem came to be considered, it was -- it was not Chicago that came to consider it, it was these three communities.

Justice Felix Frankfurter: You mean they acted on their own?

Mr. Charles A. Bane: They had the problem.

Yes, sir.

Justice Felix Frankfurter: They had the problem, but you're here on behalf of the State of Illinois and they can only speak to you --

Mr. Charles A. Bane: That is correct.

Justice Felix Frankfurter: And say --

Mr. Charles A. Bane: That is correct, sir.

Justice Felix Frankfurter: Therefore, could you -- could you not determine the mode by which their needs were to be satisfied.

Mr. Charles A. Bane: We could have done so.

But we -- on our statute books, we had authorized community such as this to form a water commission if they wanted to, to go to a common source of supply.

That authorization of course didn't refer to Lake Michigan.

It's a -- it's a statute that operates throughout the State.

Justice Felix Frankfurter: What you're saying is that there were alternative -- political, I mean it's not an ambiguous one.

There was an alternative mode of dealing with this problem and you chose and Illinois to let these communities pull their political interest in the form of Commission and you come here as of right under your view to ask for this addition of diversion under the decree?

Mr. Charles A. Bane: Yes, sir.

Yes, sir.

Justice Felix Frankfurter: That's your position.

Mr. Charles A. Bane: That is our position.

I will only have to it if I may, that these communities discovered when they -- when they set about to face the problem, they discovered that there was no source of water available for them except Lake Michigan and not other sources.

Now, they did have an alternative of turning to Chicago or going directly and decided that they would go directly.

Justice Felix Frankfurter: Are you saying that the determination of these problems is irrelevant whether the water will come eventually come from through Chicago or independently to these communities?

Mr. Charles A. Bane: That is our position, sir.

Yes, sir.

Justice Hugo L. Black: Why you're saying -- why you consider this as a small amount compared to this (Inaudible) why is it enough that other cities would form some kind of groups to get for them, all around in Chicago.

And why -- how candidates be properly taken of without considering the whole thing of how that water can be divided, if it is to be divided.

Mr. Charles A. Bane: Well, Your Honor, Illinois takes the position here that nothing that's being proposed here raises any great tremendous problem which is going --

Justice Hugo L. Black: But it's small, but then that is [Laughs] relatively speaking --

Mr. Charles A. Bane: Yes, sir.

Justice Hugo L. Black: Pretty -- pretty large.

And a few like this would -- you could say each one of them is small.

Mr. Charles A. Bane: We -- we couldn't help but agree, that if there were -- if there were indications or probabilities that numerous other communities in Illinois were going to becoming or taking advantage of these authorizing statutes and do the same type of thing that these communities are proposing here.

We couldn't help but agree that that might create a problem that had to be -- that had to be studied.

Justice Hugo L. Black: Well, how can we know they're not?

How is it possible to know that the water problem is becoming a great problem?

Mr. Charles A. Bane: Yes, sir.

Of course it is.

Justice Hugo L. Black: Do not become --

Mr. Charles A. Bane: Of course, it is.

Justice Hugo L. Black: It's not merely there.

How can we know, but that there are -- there's -- and how can we probably dispose of this when the other States are interested without having the full matter in a way considered?

Mr. Charles A. Bane: Well, Your Honor --

Justice Hugo L. Black: (Voice Overlap) making for a special order which would be for a year.

And of course, if they got it for a year and they got deprived to establish in everything, then you'd have the -- the benefits of possession.

And it would be very difficult to take it away from the people who need it.

In the other states, they're complaining now that before this is done, they should all be heard.

Mr. Charles A. Bane: But, Your Honor, there's just isn't any indication that any communities other than these are -- are concerned with this type of problem.

Justice Hugo L. Black: Not except that to -- it's the way human nature works.

Mr. Charles A. Bane: And --

Chief Justice Earl Warren: Suppose in the other -- in the other lakes -- the other states want to do the same thing, when does it get to a point where -- where the water must be distributed?

I suppose, if you have a right to take it out for Illinois in one or two or three instances by probably all these other states would have the same right, wouldn't they?

Mr. Charles A. Bane: Yes, sir.

But, Your Honor, there are certain physical limitations that are going to --

Chief Justice Earl Warren: Yes.

Mr. Charles A. Bane: -- prevent municipalities from turning to the great -- turning to the Great Lakes.

They have other resources just as our communities west of Chicago go to -- turn to the Fox River which is about 40 to 50 miles inland from the lake.

Communities aren't going to engage in the great tremendous investments that are required to go to the lake unless that is absolutely the only alternative that they have, and that is the case here.

There wouldn't have been this expenditure of $18 million or a proposal to expend that amount, unless it was determined that there just wasn't any source of water except Lake Michigan.

But may it please the Court, there is one matter on which I would've like to have commented.

It has to do with the position which the Great Lakes States have taken with respect to the requirement that we return our effluent, but Illinois is anxious to reserve a little time for rebuttal.

And therefore, if the Court please, I wonder if I might just state and -- and reiterate without being repetitive, that this is an urgent need for these communities that Illinois is -- is in good faith here when it is arguing that these wells in these communities are proven to be inadequate and that we have 90,000 people in the northern part of our State whose sanitary and drinking water needs are imperil and who are imperil with everyday that -- that passes even the beginning -- even when this project has begun.

It is going to take about two years for it to be completed.

And during that period, these communities are going to be at the risk of some adverse developments with respect to its -- to their wells which may greatly imperil the safety and welfare of the community.

It's for that reason that we have urged upon this Court and we are sorry to bother you but we have urged upon this -- this Court by various motions of the immediacy of our need and the urgency of the situation here.

We would like to stress it.

We think we've demonstrated in the briefs that we do have these rights that we are not causing damage that under the doctrines which this Court has announced that we are entitled to take.

We would like to reserve, Your Honor, and the Attorney General of Illinois would be most appreciative if the Court would permit Mr. Wines to conduct the rebuttal for the State when the time comes.

Chief Justice Earl Warren: We'll do that.

Justice John M. Harlan: Could I ask you one question?

Mr. Charles A. Bane: Yes, sir.

Justice John M. Harlan: (Inaudible) made the remark, as understood it.

There's a time that you wanted to keep this proceeding separate from the 1930 decree?

Mr. Charles A. Bane: Yes, sir.

Justice John M. Harlan: What do you mean by that?

Mr. Charles A. Bane: By that, I meant that we would -- we would not like to see the Court consolidate this proceeding with Numbers 2, 3 and 4.

Justice John M. Harlan: Why?

Mr. Charles A. Bane: Primarily, on the basis of this matter of urgency, we, of course, don't know what the Court is going to do with Number 2, 3 and -- Numbers 2, 3 and 4 on the petition for reopening.

It -- we -- we believe that there are issues there involving sanitation and navigation and the problems of direct diversion which however they are worked out, are not the problems of this proceeding.

And so though, it's the State of Illinois that's involved in each case, no, it's Lake Michigan water that's involved in each case, we think that the circumstances justifying the taking are so completely different in each case that we believe this ought to be kept separate.

Justice Felix Frankfurter: Do you think the Court can decide your case on -- on the -- on your complaint and the answer.In other words, on the proceeding you turn loosely and the argument before it that adjudicates the issue on those that without law.

Mr. Charles A. Bane: You mean determine that -- determine it once and for all, Your Honor, as if we have made a motion for summary judgment?

Justice Felix Frankfurter: Yes.

Mr. Charles A. Bane: I -- I don't have any doubt that the Great Lakes States would want to and ought to be afforded an opportunity to answer.

But once we have granted motion for leave, we wouldn't and --

Justice Felix Frankfurter: Assume that the motion is granted to that, it is allowed to be filed, assume in your answer, will that raise any legal questions for adjudication by this Court?

Mr. Charles A. Bane: We believe so.

Justice Felix Frankfurter: (Voice Overlap)

Mr. Charles A. Bane: We believe so.

Only legal questions that the questions of fact would be clear and in fact, we believe the Court could act then if they were pending before --

Justice Felix Frankfurter: Why do you say that --

Mr. Charles A. Bane: On a motion for --

Justice Felix Frankfurter: -- would be clear as to the amount, it has to the urgency, as to the --

Mr. Charles A. Bane: The nonavailability of other sources.

Justice Felix Frankfurter: -- nonavailability of that.

Mr. Charles A. Bane: Yes, sir.

Justice Felix Frankfurter: If it goes to all that, it goes a -- determinable have to answers what to be in on the pleadings of in this general term.

Mr. Charles A. Bane: Yes, sir, because we just don't believe that those -- that those can be quarreled with, those allegations.

Justice William O. Douglas: Except your problem of why not do it all through Chicago.

That would have been still not be answered as a matter of law, would it?

Mr. Charles A. Bane: Well, Your Honor, I don't know if the Court ought answer that.

And -- and actually, it -- it doesn't go to the root --

Justice Felix Frankfurter: But personally (Voice Overlap) --

Mr. Charles A. Bane: -- it doesn't go to the root of the problem

Justice Felix Frankfurter: Do you think whether -- you said the Court should not answer it.

Is it because it is -- it's not a relevant issue?

Mr. Charles A. Bane: I think it's because it's what this Court called -- well, in Philadelphia tried to get into the New York against New Jersey situation, this Court deniably for Philadelphia to intervene and said it wasn't going to be concerned with intramural problems.

I think that was the adjective that was used.

And I think that, what -- what you have to be concerned with is whether we establish a right or can establish a right to take from the lake.

But the question whether -- whether Illinois can take from the lake for these communities under their circumstances, but whether they should take from the lake by way of Chicago or by going up directly to Glen Cove, north of Chicago, that is certainly not an issue which this Court ought to be called upon to determine.

Justice William O. Douglas: I wouldn't -- I would think enough just for myself that we'd have to pass that first before we get to -- to your request.

Mr. Charles A. Bane: Sir --

Justice William O. Douglas: Because we're dealing here with those a lot of things with water supply problem with a lot of different straws in it all sucking from that supply and if what's being presently taken inevitably reapportion can handle your problem, that might be the fairest way in doing it.

Mr. Charles A. Bane: But sir, in facing to that question, it doesn't seem to me that you have to face the question of whether these communities should take through Chicago or take otherwise.

You do face the question of whether these communities, Illinois on behalf of these communities should be permitted to go to the lake or whether they should do it through Chicago or not seems to me to be an intramural matter.

Justice Felix Frankfurter: May this -- may this not be something different than intramural matter.This Commission, is that an independent agency?

Mr. Charles A. Bane: Well, it's an instrumentality of the State --

Justice Felix Frankfurter: Yes.

Mr. Charles A. Bane: -- Your Honor.

Justice Felix Frankfurter: You keep them as active and self-contained if it makes its own determination of what the need is, how much to take, when to take, enough differences of supervision of Chicago, isn't it?

Mr. Charles A. Bane: No, sir.

Certainly not.

Justice Felix Frankfurter: Therefore, if they have -- if Chicago would have to service these communities, it would be Chicago determining what the need of those communities are, isn't not?

Mr. Charles A. Bane: Yes, sir.

Yes, sir.

Justice Felix Frankfurter: Therefore, it might not make a difference that is the commission of the three cities that's determining but rather the City of Chicago.

Mr. Charles A. Bane: That might make a difference.

And of course from their point of view the -- that's the desirable alternative.

Chief Justice Earl Warren: Mr. Adams.

Argument of Paul L. Adams

Mr. Paul L. Adams: Mr. Chief Justice, may it please the Court.

Complainant has quoted in its brief the words of Justice Holmes, “A river is more than an amenity, it is a treasure.

It offers a necessity of life that must be rationed among those who have power over it.”

We believe the words of the justice might properly be paraphrased for application to our present problem as follows.

The Great Lakes are more than an amenity.

They are a national, yes, even an international treasure.

They offer a necessity of life that must be conserved among those who have power over them.

We propose to show that the actions of Michigan throughout and its position today is not one of adamant denial to another state of the use of this great resource, but rather there any use shall be reasonable and in keeping with the utmost possible preservation of the resource for co-users whether they'd be sister states or a friendly foreign power.

To this and may I review briefly the history of this present controversy?

On December 19th, 1957, Governor Williams of Michigan wrote Governor Stratton of Illinois expressing his concern and seeking information over what appeared to be a new diversion of water from the Great Lakes.

His letter enclosed a copy of a letter of the Attorney General of a State of Michigan expressing the opinion that the contemplated diversion would be a violation of the decree of the Supreme Court dated April 21, 1930.

No reply was ever received to this letter.

Again, on March 11, Governor Williams wrote Governor Stratton to reiterate his concern over any diversion from the Great Lakes basin.

No reply was received to this letter.

On October the 9th, 1958, the Governor of the Sovereign State of Michigan, having twice failed to receive a response of the Governor of Illinois, an information having come to me of the organization of a water commission that proposed to serve the domestic and industrial needs of three inland, non-riparian villages.

I did write the letter a copy of which is a pendant to complainant's motion for a leave to file a complaint.

Again, on behalf of the State of Michigan, I objected to the apparent attempt not to use but to divert the waters of the Great Lakes from the Great Lakes basin to the Mississippi watershed.

Now, may I say that in attempting to deal with this controversy, the State of Michigan has found itself faced with an enigma or perhaps I should say, with a case of schizophrenia for we have attempted to deal with the State of Illinois and we found ourselves ignored, forced to turn our attention to the Water Commission.

And if we attempted to deal with the Water Commission, then we found ourselves sued by the State of Illinois.

We the defendants feel that we are faced with alternative situations, each of which presents its own legal problems and issues.

If we are dealing with a suit brought in reality by the Water Commission, then the issues as we view then becomes as follows.

The State of Illinois is not the real party and interest.

The complainant -- the complaint does not present a justiciable controversy between states.

No actual controversy or case exists.

Developed complaint shows neither juridical right nor injury.

The Federal Declaratory Act is not applicable.

Well a co-counsel for Wisconsin, New York and Pennsylvania will address their attention to these issues.

If we are dealing with a suit brought in truth by the State of Illinois, then we believe the following issues become pertinent.

Before entertaining jurisdiction of this Court as a precondition require that a good faith effort be made by the States themselves to settle their dispute.

Require that the complainant's state make a clearer prima facie showing that the relief it seeks is truly to meet a present crisis in domestic usage.

Justice Felix Frankfurter: Mr. Attorney General.

Mr. Banes, I understood him to say that there were efforts made and they approved the subordinates were unsuccessfully.

Mr. Paul L. Adams: I would like to review those if I may, Mr. Justice Frankfurter.

Second point that the complainant state make a clearer prima facie showing that the relief it seeks is truly to meet a present crisis and domestic usage not for industrial development or future domestic needs or in lieu of some other, well perhaps more expensive method of providing water.

Secondly, that if the Court does entertain jurisdiction, then it should take cognizance of the whole controversy between the respective parties as it fits a suit between quasi sovereign.

And thirdly, that if this Court takes jurisdiction, it should direct its attention and concern to the preservation of the Great Lakes basin rather than to a division or apportionment of this great national and international treasure.

One, before entertaining jurisdiction, the Court should require that a good faith effort be made by the States themselves to settle their dispute.

On March the 6th, 1959, I suggested a conference to discuss problems of diversion at the suggestion of a Solicitor General of the United States.

On March 16th, 1959, the then Attorney General of Illinois, Attorney General Castle, replied to me that, and I quote, “Illinois is entitled to take the domestic pumpage from the lakes without returning any part thereof to Lake Michigan.”

And that this was the position of the State of Illinois that well is perfectly willing to confer this was the position that the State would maintain.

I realized that the complainant claims good faith that I submit that this type of position or to cite another example that an offer to negotiate on the basis that the only negotiation would be the withdrawal of the objections of the complainant states is not good faith negotiation or an attempt between the States to settle these issues.

And I submit to the Court that under the contract clause or the Federal Constitution, under principles of international law, full disclosure, negotiation, inquiry, mediation, conciliation and other peaceful means are the course that should be adopted first before the jurisdiction of this high tribunal is invoked.

The Court should cause the complainant to make a clearer prima facie showing that the relief it seeks is to meet a present crisis in domestic usage, not for industrial development or future domestic needs or in lieu of some other perhaps more expensive method of providing water.

This Water Commission proposes to serve, and this is from their own motion, the City of Elmhurst, the villages of Villa Park, Lombard, Addison, Bensenville, Elk Grove and industrial users, pages 9 and 10 of the complainant's motion.

I submit to the Court that the affidavit of Ralph A. Smith will not stand careful analysis and scrutiny.

He states, “During recent years, the increasing consumption of water in domestic and industrial users is beginning to exceed the water supply available through underground sources.”

Page 5, motion to advance.

And Joseph F. Collin, the other affiant, uses the same identical language in the body of his affidavit.

And both of these men say and summing out and I'm trying to justify this action the following.

Due to the increase need for water, they do not say, “Water for what?”

They merely say, “Due to the increase need for water.”

A real danger exists that the well supplies may diminish within the next few years to the point where a serious shortage will exist.

I submit that these affidavits do not provide a proper foundation for action by this Court.

Know well that their faced assertion of the complainant that there is no other source of water supply in the area except Lake Michigan.

But this plains and parks rivers cannot be explained the way by saying, and again I quote, “They do not have sufficient flow or wholesomeness of quality of water to serve these communities.”

On the second point, if the Court does take jurisdiction, it should take cognizance of the whole controversy.

We agree with the Solicitor General, that a State has a real interest, quasi sovereign in character in all the earth, water and air within its domain.

And if the present suit were bought to determine all the relative rights of the State of Illinois in the waters of Lake Michigan, we would take no exception to the Solicitor General's position.

In a suit between quasi sovereigns, all rights should be adjudicated in a single or in consolidated action.

We agreed that this controversy might well be likened to a boundary dispute.

But we insist, look at the whole boundary.

Do not attempt to settle the dispute an inch at a time.

And as a final point which admittedly goes to the merits of the controversy but which is discussed in the Solicitor General's brief in terms of equitable apportionment, we contend that the prime -- that the prime concern of the Court and of all the lakes states should be the preservation not the division of the waters of the Great Lakes.

We contend that is not possible for this Court equitably or in any other way to apportion the waters of the Great Lakes as between Illinois and Canada.

We contend that the right of navigation is a paramount national right that would be affected if Illinois is permitted to divert unilaterally even 30 CFS.

This is a measurable diversion.

It amounts to three one hundredths of an inch.

This is in terms of the need of only 90,000 people.3

3 and one-third times, three one hundredths of an inch equals one inch.

One inch equals 1,500,000 tons of shipping annually.

Certainly, the needs and use of an early 40,000,000 people in the Great Lakes area demand the most careful preservation of this national resource.

It is not enough to assert that some solution to the overall problem will be found by impounding excess water during wet years when the lake cycle is high.

And thereby, provide additional water during drought years.

Such a solution is being and has in the past been sought by the U.S. Corps of Engineers but it has not yet been achieved.

In the meantime, the only proper and sensible rule is once of reasonable use of as little diminution as possible of return to the -- to this treasure, to this common pool of that which is taken from it.

This has been the policy of all the lake states except Illinois.

If this Court sanctions taking by unilateral action, the result can be either endless litigation on a peace meal basis or constant repeated injury to the Great Lakes States, to the paramount navigational interest of the United States and to the rights of Canada.

Chief Justice Earl Warren: Mr. Reynolds.

Argument of John W. Reynolds

Mr. John W. Reynolds: If it pleases the Court.

I would like address myself in State of Wisconsin to only four points.

Points being that another action is pending the damage that has done to the Great Lakes States, declaratory judgment question and that no damage is done in State of Illinois.

Before I go into that, I would like to answer Justice Black's question about whether or not this problem was peculiar to the Chicago area.

Mr. Justice, it is not peculiar to that area.

We have a problem of my hometown in Green Bay.

We ran out of water up there and we went to Lake Michigan, we took the water, we purified the effluent, we put it back in Lake Michigan.

We put it back in Green Bay.

And the same problem was faced in Sheboygan, Wisconsin, Fond du Lac, Wisconsin, Milwaukee, Wisconsin.

This problem is not unique to Chicago.

Justice Hugo L. Black: Do you -- do you say the same problem faces on this get board of, they are already getting water.

Mr. John W. Reynolds: They're getting water, but they're returning the effluent to the basin.

Justice Hugo L. Black: Well does it -- are there other places that are not getting it back that it likely to be?

Mr. John W. Reynolds: The -- General Adams stated, “It's in the policy of all the Great Lakes States that when the cities take waters, water out of the Great Lakes, that the affluent is returned to the Great Lakes.

Justice Hugo L. Black: As I understand that, what the question I was asking you was a little different, was this.

They say that while their -- this particular problem, this need for water is area -- area has become, that is not a widespread problem?

Mr. John W. Reynolds: Well, I -- my point was it's widespread north of Chicago and Wisconsin, the City of Fond du Lac, which is located on Lake Winnebago at the present time is having a major political fight over whether or not they should build a pipeline to Lake Michigan, or should they take the water out of Lake Winnebago, which is a small shallow lake.

Justice Hugo L. Black: I hope so the population up there is growing, right?

Mr. John W. Reynolds: It's growing, yes.

Justice Hugo L. Black: Some other places that we can --

Mr. John W. Reynolds: I think that in the -- the fact of another action is pending.

Justice William O. Douglas: But does -- does Milwaukee take water from --

Mr. John W. Reynolds: Milwaukee takes the water from Lake Michigan.

It purifies it and returns to Lake Michigan.

Justice William O. Douglas: And I understand as I read the briefs of Wisconsin and Michigan, they wouldn't object to Illinois doing that in this (Voice Overlap) --

Mr. John W. Reynolds: We have no objection at all to Illinois taking the water, using the water and returning it to the Great Lakes basin.

And later on, I'm going to discuss how that affects our -- the issue of damages.

We believe that the issue is not the right of the State of Illinois to divert water.

The issue is whether or not they should be compelled to return the water to the Great Lakes basin.

If the -- if issue is merely for the right you can take water, then there is no issue in this case because we say they have the right to use it.

Our point is that when they do use it, they have to return it to the Great Lakes.

Justice Felix Frankfurter: Does that apply didn't you say they have the right to use it, that you recognized a need of these three communities?

Mr. John W. Reynolds: Their need is the same as the city -- the need of the City of Milwaukee, the need of Cleveland, Ohio.

They all take water out of the Great Lakes.

Justice Felix Frankfurter: Well, then you -- did you recognize their needs?

Mr. John W. Reynolds: We coarsely recognized their need.

Justice Felix Frankfurter: So that would not be a contested question on which evidence should have to be taken and submitted by you in behalf of Wisconsin?

Mr. John W. Reynolds: If they have any water.

Justice Felix Frankfurter: Yes.

Mr. John W. Reynolds: I -- I personally, I would believe that there -- the natural wells are going dry.

We face that problem in the Green Bay.

Justice Felix Frankfurter: Well, that's --

Mr. John W. Reynolds: I know they want that.

Justice Felix Frankfurter: -- that's problem Congress has concerted out.

Mr. John W. Reynolds: Well, I don't want to --

Justice Felix Frankfurter: The issue of need.

I don't mean how it needs something.

But the issue of need, you say, you recognized.

Mr. John W. Reynolds: Well, I'm willing to believe them, but I would like to ask if we have the opportunity to cross-examine their engineers.

Justice Felix Frankfurter: All right.

Mr. John W. Reynolds: I don't want to say the issue is out.

Justice Felix Frankfurter: All right.

Very well.

You answered that.

So this --

Mr. John W. Reynolds: The -- the taking of the water -- the diverting, excuse me, the diverting of the water from the Great Lakes, even a small amount, does irrefutable harm to all the Great Lakes States because it establishes a precedent.

If you permit these three communities to do this, you're establishing the precedent that any community that lives within a pipeline distance of lake -- of the Great Lakes, that they shall have the matter of right, the authority to take water out of the Great Lakes and dump it into another watershed and run it down.

The City of Cleveland is close to the watershed of the Ohio River.

The City of Milwaukee, Wisconsin is close to the watershed divide, very close, just on the Waukesha County, and they have toyed with the possibility.

Now, the fact is the State of Wisconsin and the other Great Lakes States, we have insisted that our communities build modern sewage and expensive disposal plants in the City of Sturgeon Bay.

And gentleman at a case, dealing with a courthouse up there, they are surrounded by water and yet they have a sewage disposal plant before they dump their water into the lake.

Justice William J. Brennan: Milwaukee make (Inaudible) money out there, don't they, by selling the (Inaudible).

Mr. John W. Reynolds: Well, the -- I don't know if they make a profit at it, but they certainly do sell it.

They have a very modern plant.

It -- if we permit these cities to do what they ask, we're placing a tremendous burden on -- on the sister states, how can we compel our industry, our cities to go to the expense when Chicago -- when the Chicago industry doesn't have to go to this expense?

The second fact is that allowing them to divert water out of the sewage, out of the Great Lakes has the effect of -- if they all do it, of literally destroying the Saint Lawrence Seaway.

We talked -- we've heard a lot about five inch, five eights of an inch or an inch.

One inch on the Great Lakes from the top is, of course, one inch from the bottom.

The vessels on the Great Lakes are loaded by inches.

On a large vessel, one inch equals 180 tons of -- of carrying capacity per trip.

A mollified a number of trips and you get the -- what the law says.

These vessels literally, scrape their -- their bottoms as they go through some of these channels in the Great Lakes.

And so, if you allow Chicago in the major action which will -- to take water made after 10,000 cubic feet to -- if they're going to expand.

If they're allowed to that and every other community is allowed to do it, you'd lower the level of the lake two or three feet.

And we believe that by establishing this precedent, if we're going to -- and to permit any city that's within pipeline distance to run to the lake and take the water and dump it down on other watershed, it would materially injure the Saint Lawrence Seaway.

Chief Justice Earl Warren: Where does Chicago effluent to go, it goes into the Illinois River?

Mr. John W. Reynolds: The Chicago effluent was in the Chicago drainage canal.

See, originally around 1900, they turned the Chicago River around.

Chief Justice Earl Warren: Yes.

Yes.

Mr. John W. Reynolds: The drainage canal down to the Des Plaines River into the Illinois River and it goes -- and then of course into the Mississippi.

And that's why they need this under the 1930 decree, the extra 1000 cubic feet to literally flush their -- this open sewer out.

And Wisconsin and the other Great Lakes States have always insisted from the very beginning that the -- their sister states and sister communities have the duty to purify their effluent.

We do not believe that in this present -- excuse me, Your Honor.

Chief Justice Earl Warren: No.

No (Inaudible)

Mr. John W. Reynolds: We do not believe that in this present action that the State of Illinois is actually hurt as it brought out in questions, this water department can get the water from the City of Chicago.

The simple fact is they could sell their bonds if the State of Illinois would put the full faith and credit of the State behind this water commission.

And that we have made no threats to the construction of the water works.

In fact, Wisconsin hasn't even sent a letter.

But we certainly would insist that any additional diversion from the lake will be prohibited.

And that any water that's taken out of the lake be returned to lake as -- after it is purified.

Thank you very much.

Chief Justice Earl Warren: Mr. Shepp.

Argument of Richard H. Shepp

Mr. Richard H. Shepp: Mr. Chief Justice and may it please the Court.

I would like just to bring the Court back to review the complaint at this stage of the proceeding of course we're considering whether Illinois shall be given leave to sue the rest of us on the basis of the complaint, to this is -- before this Court.

It's our position, it's my position at least that I'm sure it's the position of the rest of my colleagues that the complaint does not invoke the parens patriae doctrine in -- in the present writing of the complaint.

If this lawsuit is either a class action or a private lawsuit which has never been within the -- never been taken within the jurisdiction of this type of action between sovereign states.

To look at the complaint itself, it -- it -- the factual obligations involved the water needs of 90,000 people, the formation of a commission, the commission being a public corporation going into the business of hiring engineers of engaging in contracts for the acquisition of its rights of way for its properties and entering into contracts for the sale of its water and for the contracts of the sale of it bonds.

Threats the allegation say by the Attorney General, however made the delivery of the bonds impossible.

We contend it's my position at any rate that that is the principle grievance of this particular complaint.

The -- the failure of the inability of Illinois of the commission to sell its bonds.

The remaining allegations of the complaint make it clear that this is an action primarily for the commission for the sole benefit of this public corporation and not for the State of Illinois.

I refer for instance to the complaint.

In paragraph 12, the complaint reads, “The commission here involved there's only the power to acquire a supply of water.

It has no function or power to dispose of the sewage effluent.

Only parts of the communities to be observed by the commission are within the Metropolitan Sanitary District of Chicago.

But like that district, they all dispose of their sewage effluent into the Mississippi watershed.

Then the complaint goes on further to say in paragraph 13 on page 13, the question of return of sewage effluent by that area is involved in the other proceedings in -- in original actions two, three and four for which are the most impending before this Court.

The right of the commission, the complaint states to withdraw water from the lake for domestic purposes as proposed by it should be declared without consideration of any demand by the defendants that the sewage effluent resulting from -- therefrom, that is from their own water it's directions should be returned to the lakes.

Now, it seems to me that the only reading of that complaint where -- where the scope of it involves from any angle there's a limited size of area involved.

A small quantity of water the bond problem of the commission and a request to limit the action to this action here to a ruling that the commission has the right to withdraw water without respect to the whole picture the reasonable uses involved that Illinois would be concerned with.

It -- it only points to the conclusion that the -- that the complaint is not a proper parens patriae situation.

Justice Hugo L. Black: What -- what in your judgment could be the proper thing to do, and then you think that is true?

Mr. Richard H. Shepp: The --

Justice Hugo L. Black: Are you saying the complaints should be dismissed on the (Inaudible) of the cases to be consolidated to the others to place on the property?

Mr. Richard H. Shepp: It's our position, Your Honor, that the proper remedy for the State of Illinois to raise the whole rather than the piece -- piecemeal litigation is to go back to the original actions Number 2, 3 and 4.

They are not without remedy, if they do, we have grievance.

That's my (Inaudible)

Chief Justice Earl Warren: We'll recess now, until tomorrow noon.

Print this transcript Transcript: 

Argument of Lois G. Forer

Chief Justice Earl Warren: Number 15, Original State of Illinois, Plaintiff, versus States of Michigan, Ohio, Pennsylvania, Minnesota, New York and Wisconsin.

Mr. Forer.

I -- are you -- oh, I beg your pardon.

They gave me -- oh, Mrs. Forer, I beg your pardon.

Ms Lois G. Forer: Mr. Chief Justice, may it please the Court.

I'm here on behalf of the Commonwealth of Pennsylvania.

We protested the proposed diversion of Great Lakes' water by the Elmhurst-Villa Park-Lombard Water Commission because as we stated in our letter which is attached to the complaint, the diversion added the Great Lakes and the Basin and into another watershed would constitute an infringement of the rights of Pennsylvania as a riparian sovereign.

The lowering of the levels of Lake Erie constitutes immeasurable damage to Pennsylvania.

But beyond this very real question of damages Pennsylvania is concerned with the theory of law upon which this proposed diversion is predicated.

A theory of far reaching implications, we believe startling and without precedent.

And Mr. Justice Brennan observed yesterday, if this corporation is entitled to take and divert Great Lakes Water then a precedent is established for innumerable users and commercial suppliers of water in the United States and Canada to divert without control or limitation.

The complaint seeks to restrain the defendant state but it places no limitation on the plaintiffs.

There were --

Justice Felix Frankfurter: Mrs. Forer, I take it -- if I may say so, you're objecting to what Illinois is asking this Court to do --

Ms Lois G. Forer: That is right.

Justice Felix Frankfurter: -- and not worrying if this Court may pronounce a wrong legal theory.

Ms Lois G. Forer: We are concerned -- first, if you have no jurisdiction to hear this.

Justice Felix Frankfurter: That is -- that's conclusive on what you can do with it.

Ms Lois G. Forer: Thank you.

Several matters were discussed yesterday namely that there was no other community interested in taking Great Lakes' waters.

And we have information from published newspaper accounts that other Illinois community such as Arlington, Barrington and Mt. Prospect are at this very moment considering going to Lake Michigan for water.

In addition --

Chief Justice Earl Warren: There are no cities located on the --

Ms Lois G. Forer: They are not riparian and most of them I believe are outside of the watershed, as is this complex of communities.

They --

Chief Justice Earl Warren: They're in Illinois, are they?

Ms Lois G. Forer: In Illinois, but not riparian and not within the Great Lakes watershed.

In addition some question was raised yesterday with respect to Canada's position.

Now of course obviously Canada is not before this Court.

But we would like to call the Court's attention to a letter of April 9th, 1959 from the Canadian embassy to the United States and if I may I would quote this just as one sentence.

Every diversion of water within Great Lakes watershed at Chicago inevitably decreases the volume of water remaining in the basin for all purposes.

The Government of Canada is opposed to any action which will have the effect of reducing the volume of water in the Great Lakes Basin.

Justice Hugo L. Black: Where is the full text of that, (Inaudible)

Ms Lois G. Forer: This -- I am reading from the House of Commons Debate, Volume 103, Number 59, the Second Session, 24th Parliament, Official Report dated Thursday April 16th, 1959.

In cases such as this involving natural resources, one who objects to a taking or a wasting of a resource is always placed in a dilemma articulated in the Old English Chancery case of Goldsmith against Tunbridge Wells Improvement Commission.

Either, we are accused object -- objecting too early or because the taking or wasting is of a small amount or waiting too late until we are faced with a (Inaudible) plea, as we were in the Chicago Sanitary District case which, of course, you are all very familiar.

The applicable law to this taking as we view it is well settled.

All of the Great Lakes States including Illinois and also Canada adhere to the riparian doctrine of water law.

This Commission is an Illinois corporation authorized to sell water to communities and industries, and there are plans for further expansion of the industries in this area.

It is undisputed that these are none riparian users and indeed are outside of the Great Lakes Watershed.

Whether they are 20 miles from the Great Lakes or 200 miles is in our opinion wholly irrelevant because if the State of Illinois can come in and claim that a non-riparian has a right to take and divert, then they make their claim with respect to any community within the entire state.

Thus we say any analogy to what is being done in Milwaukee, Cleveland, and Chicago which are riparian municipalities entitled to use Great Lakes Water is implicit.

All of the riparian communities along the Great Lakes with which are familiar use that water and return it to the basin in accordance with riparian law of reasonable use, all except Chicago of course.

This corporation, the Elmhurst-Villa Park-Lombard Commission asserts a unilateral right as a non-riparian outside the watershed to take an unlimited quantity of interstate and international waters without regulation by any governmental agency and without the consent of the riparian sovereigns.

While Illinois asserts that the amount of water to be taken is relatively small, the complaint itself seeks an unlimited right to take without any interference.

In seeking to negotiate with Illinois, the thrust of the defendant states has been to require a return of the effluent which would constitute about 93% of the water taken.

But while seeking such a return of that purified effluent will substantially reduce the damages, the right to take water at all is hereby challenged.

The plaintiff's justification for taking, as alleged in paragraph 3 of the complaint is the urgent need of these communities.

Mr. Bane in his argument adverted at some length to the engineering studies upon which the plan for this taking was based and this study is mentioned in paragraph 9 of the complaint although of course it is not in evidence.

But like the affidavits, I attached to the motion to advance.

This engineering study does not bear scrutiny.

It sets forth exports two reasons for the plan on page 13.

One is that the use of lake water instead of well water which save each household $16 a year for soap.

Mr. Justice Brennan asked why these communities did not choose to purchase water from the sanitary district.

And in answering that question, Mr. Bane again referred to the engineering report and stated that this was the recommendation of the engineers and of course this is true.

But the reason for this recommendation is very interesting.

If I may, I would like to read just one sentence there, one paragraph.

Two practical methods of obtaining Lake Michigan water are available to the Commission.

They are: one, negotiation for purchase of filtered water from the City of Chicago, or two, construction and operation of new supply and treatment facilities to be owned and operated by the Commission.

A course analysis of the alternate methods indicates that the estimated unit course for filtered Lake Michigan water will be less if the Commission builds and operates its own independent system.

This is the need of which has been asserted.

Chief Justice Earl Warren: Mrs. Forer, would you have any objection if they did buy their water from the sanitary district?

Ms Lois G. Forer: Well, our objection might be different.

We say that the sanitary district is a riparian authority which has the right and power to use Lake Michigan water.

Since the taking of water by the sanitary district is subject to the opening decree of this Court we feel that we as defendant states would not be harmed by any additional servicing of other communities since any diversion of the water would be subject to the control of this Court.

And therefore we say that any taking additional taking must of course be considered in original cases two, three, and four before this Court to determine to what extent any diversion at all out of the lakes is permissible and to what extent it damages all of us as defendant states.

This would not involve a new principle of law that a non-riparian community could simply purchase one -- my new portion of land along the lake and put in a pumping station and divert waters down the State uninterruptedly.

If the Metropolitan sanitary district does it, we say it is subject to the control of this Court entirely.

Chief Justice Earl Warren: Well, if those -- the thing that I -- I've been thinking about is this, if -- if they could by the water from the sanitary district so far as the effect on the lake is concerned wouldn't make any difference, would it?

Ms Lois G. Forer: We think it would make a considerable difference.

Chief Justice Earl Warren: What -- what -- in what manner?

That's what's bothering me.

Ms Lois G. Forer: If the border is purchased from the sanitary district, we claim that the sanitary district is required to return the purified effluent to the Great Lakes Basin.

This water commission, this corporation is established to sell water to pump and supply and sell water.

It has no authority according to Illinois to purify the sewage and to return it.

The plan of this corporation is to take the water from the Great Lakes, take it over the watershed, service these communities and industries at a profit or a certainly charging for it, and then simply let gravity and nature take its scores and the water will be -- go down the Mississippi Waterway.

Now, I'd like to point out that we have heard at great length that only a small amount of water is involved.Under the decree of this Court, the sanitary district is taking 1500 cubic feet per second for the purpose of flushing out the canal.

In addition, they are taking an unlimited quantity as domestic pumpage.

And according to the figures of the sanitary district this is some 1700 cubic feet per second.

Totalled together, this constitutes more water then flows through the Delaware River, so we are not talking about small amounts.

And as I say, if this amount of water is added, every other community may also add and we see it is a very serious question.

Chief Justice Earl Warren: Well, I was thinking this that the -- the -- this new district does not propose to return the effluent --

Ms Lois G. Forer: No.

Chief Justice Earl Warren: -- but neither does Chicago, does it?

Ms Lois G. Forer: Well, we claim and that will be decided in the other case.

Chief Justice Earl Warren: In the other case, that it --

Ms Lois G. Forer: That --

Chief Justice Earl Warren: Yes.

Because --

Ms Lois G. Forer: They are required to.

Chief Justice Earl Warren: -- of your advance in there.

You --

Ms Lois G. Forer: Yes.

Chief Justice Earl Warren: -- maintain that that position, I understand.

Ms Lois G. Forer: That's right.

Chief Justice Earl Warren: I understand that now.

Justice William J. Brennan: Mrs. Forer, you're suggestion is with the -- they are the riparian.

I think you -- the question using riparian communities and that -- is that -- and I gather that as a matter of law, it could be a community which is not within that definition.

That should have no right to take in any event from the lake, is that it?

Ms Lois G. Forer: We believe that that is the law and that the doctrine of equitable apportionment which was discussed at some length yesterday has in effect been misconstrued or misapplied.

If we turn to those cases in which a non-riparian community was allowed to take waters, we find that it was not a case in which a non-riparian having no right to the waters simply was granted a division of these waters because it needed water.

There was in effect a quid pro quo.

Now, in the case of Connecticut against Massachusetts which was quite different, we work -- the Court was concerned with two wholly intrastate non-navigable rivers.

Massachusetts, under a permit from the Secretary of the Army captured a limited amount of flood waters and the amount was limited by the permit.

Flood waters within the State and withheld them from going down into Connecticut.

Connecticut protested on the ground that it was losing a power potential.

Now of course, there were no laws to navigation because these were non-navigable streams whereas of course we are contending that any loss to the Great Lakes very seriously affects navigation, the ports, and the shipping as General Reynolds pointed out.

The loss of power potential was not deemed adequate grounds for damage because Connecticut not only had -- had no power installations but had no plans for any.

Now, as we all know New York has extensive power installations and that any water taken out of the Great Lakes of Chicago reduces the flow there.

This is not only a loss to New York but to Pennsylvania, a large portion of which is served by this tower.

Justice William J. Brennan: Well, what -- what -- I'm not quite clear about it, the argument.

If this complex of community were to be annexed, I understand as the fact of the matter that's not in the Court, but if they were to be annexed in Chicago, if Chicago holds a riparian community, would not that annexation qualify?

This complex also as the (Inaudible)

Ms Lois G. Forer: To receive water as a part of a riparian community but we also say that this being a riparian water state and an inter -- interstate and international waterway, the doctrine of reasonable use of course requires that the water be treated and returned to the basin and therefore that if --

Justice William J. Brennan: Well, that would be true.

Ms Lois G. Forer: -- it is taken --

Justice William J. Brennan: That I -- as I understand your position, that would be true whether or not this complex of the riparian community because you suggest that should preclude as to Chicago?

Ms Lois G. Forer: Yes.

Yes.

We suggest that should be true as to Chicago and after these communities we suggest further that they have no initial right.

Justice Felix Frankfurter: But your difficulty would be met if the effluents flow returned.

Ms Lois G. Forer: Not entirely.

Justice Felix Frankfurter: Well, expand that Mrs. Forter.

Ms Lois G. Forer: All right.

The damage would be substantially reduced by some 90% but the principle of law which would require if, for example, this Court were to permit the Board the complaint and were to enjoin the defendants from objecting to what the Commission proposed to do, this would be precedent which would authorize any non-riparian community to go to a water source and simply take without leave of any governmental agency or without negotiating with -- with the sovereigns and community which have a legal right to the water.

Justice Felix Frankfurter: But Mrs. Forer, as I understood Mr. Bane, he isn't asking this Court to announce an abstract legal proposition but on riparian claimant or applicant has the right to tap lake waters.

Illinois comes here and says there is a health emergency situation and the way to meet that is to get some of the lake waters.

And if there's no basis for that and there is no basis for the suit, so isn't that in fact a legal question if they'd be asking us to announce?

I follow you in saying that if you grant this there'll be pressure precedent or episode, if you will, have a way of multiplying and therefore there is that danger or all the consideration for circumscribing and carefully scrutinizing the claim that there is an emergency.

But the starting point is not an abstract theory or a desire to establish a precedent but a desire or a compulsion within the meaning.

Ms Lois G. Forer: Well, in answer to that Mr. Justice Frankfurter, we say that no need has been shown to date and we further say that Illinois has no standing here parens patriae.

We, defendant states are in this Court to preserve a great natural resource which we believe rightfully belongs to the states and all their inhabitants.

Illinois is here in quite a different capacity.

Illinois is here in order that a corporation may sell revenue bonds.

We think this case -- this situation is ruled by the case of Louisiana against Texas.

In that case, Louisiana brought suit against the Governor of Texas and the health authorities because in the application of the quarantine laws, Texas had in effect put an embargo on Commerce from New Orleans.

And Louisiana came to this Court and asked parens patriae that relief be granted and this Court sustained the demurrer saying that a financial loss to certain individuals within a State does not give rise to the kind of action which this Court can hear in its original jurisdiction.

Justice Felix Frankfurter: Are you suggesting that this Commission is a commercial enterprise and no more, are not different?

Ms Lois G. Forer: I'm suggesting that this Commission has no authority to do what it chooses to do.

The Solicitor General in his brief, I believe its page 20, suggest that this Commission is authorized to divert this interstate waters and he cites the Illinois Act of 1957, page 20 of the Solicitor's brief.

The pertinent part of that statute says that the Department of Public Works and Buildings may grant subject to the forgoing provisions of this Section a permit to any person, firm or corporation, not a riparian owner to use the water from any of the public bodies of water within the State of Illinois.

That statute, we maintain, does not give this Commission, this corporation, the authority to take water from an interstate body or to divert water.

It says that a corporation may use water when it is non-riparian.

Justice Felix Frankfurter: Would your -- would your position be different if instead of operating through especially for ad hoc Commission seeking to accomplish this water need, to serve these water needs to these (Inaudible) the thing has been done through the joint arrangement of the Health Department, whatever they're called, of the three political units apparently.

No intervening Commission, no intervening anything except the regular and municipal authorities of the three communities, would that -- would that makes the case different?

Ms Lois G. Forer: I think the case might be different if the State itself were involved and because we are met with this answer as General Adams said, when we attempt to deal with this Commission and suggest that they in negotiation that they make arrangements to purify and return the effluent, we are met by the answer that this is a corporation of limited powers that it has no authority to deal with sewage and disposal.

And therefore, all it has, the authority to do is to take the water.

Justice Felix Frankfurter: But if --

Ms Lois G. Forer: Therefore we are not dealing with a sovereign who has unlimited power to comply with a decree which would compel it to do these things.

Justice Felix Frankfurter: (Inaudible) would ask that?

Does that mean that if this Court conditioned the relief asked by Illinois with the duty to return the effluent that Illinois could -- if that decree, water could be taken and that qualification of the decree could be disobeyed and on citation for an intent upon it and it's action for contempt, would it be a good answer to say all but for the limited corporation would be ultra vires for us to obey this Court's decree?

Ms Lois G. Forer: This is the answer that they have given us so far.

I think --

Justice Felix Frankfurter: The ultra vires, that's potentiality but I want to finish that part.

Ms Lois G. Forer: Well, this is the answer that they have made in the course of conversations.

So that we feel that this is not an appropriate way and indeed that this Court does not have jurisdiction to hear such a matter.

I would like to point out that in the case of New Jersey against New York which is relied on so heavily by Illinois and the Solicitor General.

That was a proper case of equitable apportionment of the Delaware River.

There, New York City at its own expense built reservoirs and dams to capture the floodwaters of the Delaware.

These floodwaters would have gone unused and wasted out to the sea.

And this dam, these constructions were in effect a great help to the flood control on -- of the riparian states along the way and also to navigation.

But in addition, this Court conditioned its decree upon the duty of New York to maintain a minimum flow of a certain number of cubic feet per second in the Delaware.

And during this past summer which was a time of drought, New York City released from its reservoirs water which managed more than half of the flow of the Delaware all summer and in effect was deprived of the water which it had captured at its own expense.

Now, this is a proper case of equitable apportionment where there is a division of benefits and burdens.

New York did not take water belonging to the other states without giving them some compensating return.

I'd like --

Justice William O. Douglas: The -- is that the water case, the only case we've had where the Board has permitted the diversion from water -- from one watershed to another watershed?

Ms Lois G. Forer: Well, there had been cases in the west were both States adhere to the doctrine of prior appropriation.

There we think these cases are not of course applicable.

In the case of Colorado against Kansas, Kansas at that time or at least for the waters involved adhered to the riparian doctrine, Colorado did not.

The river there was a broken river.

Its flow was interrupted.

In effect it was two streams.

And this Court raised the question as to whether a non-riparian user had a right to divert water and said this was a very serious question but under the fact of that case or other water was used for irrigation, it was returned to the stream and therefore in an arid region, the whole regimen of the stream and the area was improved by the use of the water.

Now, in this case, it is difficult to see that there is any improvement or benefit conferred upon the Great Lakes space and as a whole or anyone else.

All that is happening is that you save this particular small community money, the water is being taken to the detriment however large or small, of all of the other Great Lakes States.

For this reason, we believe that the motion at least to file a complaint should be denied.

And we point out that this does not leave these communities without relief.

In the first place, they can buy water from the sanitary district if in fact there is a real shortage of well water.

Illinois can negotiate for an agreement with the other states for a limited amount of non-riparian taking with the return of the effluent and if the sovereign make such a negotiation, the sovereign state will have to, of course carry out the undertaking.

Justice Felix Frankfurter: I hope you wouldn't leave Canada's interest to all of it except in the arrangement among the State?

Ms Lois G. Forer: Well, I should think that Canada's interest would have to be considered possibly on a diplomatic level.

Justice Hugo L. Black: What do you think about the other states that are not what you would call riparian?

Do they have any of them?

Ms Lois G. Forer: The States outside of the Great Lakes water basin, we think that the States downstream along the Mississippi River have an interest and we have received any number of communications from communities down the way asking us to proceed most urgently with the other case because they feel that they are being harmed by the flushing of the sewerage down the Mississippi River.

But with respect to taking water out of the Great Lakes, we do not see that the other states which do not -- water on the Great Lakes and are not part of the watershed have any particular interest.

Justice Hugo L. Black: You mean the -- could the States that border on it divide it up and dry up the lake, apportioning, equitable apportionment?

Ms Lois G. Forer: We feel that they could not.

Justice Hugo L. Black: Why, if no other State has the interest?

Ms Lois G. Forer: Well, we feel that that equitable apportionment does not mean a division of the waters but a -- the best and most beneficial use of this interstate water system is great resource that the Great Lakes States could not themselves get together under any kind of an interstate compact and apportion the waters out and deplete the natural resource.

We believe that though we have a right to enter into compact, we are naturally (Voice Overlap).

Justice Hugo L. Black: Your time is up and you have emphasized so much the rights of riparian owners that I'm wondering is it possible to define who the riparian owners are at Great Lakes?

If -- if the people within 10-mile are, are they?

Are riparian owners -- while the people within 20-mile of that are not riparian, who are riparian?

How can you -- how can you define, put a label of the law and say that under the law, they have certain specific definite right because they are riparian?

Ms Lois G. Forer: Right.

And Mr. Justice Black, we believe that the municipalities which actually apply on a body of water are of course riparian and since the municipality --

Justice Hugo L. Black: The municipality.

Ms Lois G. Forer: Municipalities and of course individual communities.

Justice Hugo L. Black: What about the county?

Ms Lois G. Forer: Well, I think it might well depend upon local law what the --

Justice Hugo L. Black: Well, that's the local law so far as the distribution is concerned that the State can control fully apart.

What about a State if it's on the border of that?

Ms Lois G. Forer: Well, this is the argument that Illinois is making.

That in effect under the Supreme Court 1930 Decree, the entire State of Illinois has a right to divert out of the Great Lakes water for the benefit of all the communities in the State.

This -- oh, we simply do not accept because -- it -- there, it seems to us that there were two rather well defined theories of water law in -- that are recognized in the United States, either riparian with a -- the modification of reasonable use and the doctrine of prior appropriation.

Justice William O. Douglas: I thought in your supplemental brief, you would find using non-riparian in the sense of those who were occupying a geographical area that was in different watershed.

Ms Lois G. Forer: Yes.

Justice William O. Douglas: Is that right?

Ms Lois G. Forer: Yes.

Not only noncontiguous but they are in a different watershed and the watershed here is undisputed that these communities are outside of the watershed of the Great Lakes even though they are geographically rather close.

And therefore that unless the water is -- actually comes back into the lakes, of course, it will not return.

Justice Hugo L. Black: Well, if the stream is navigated, how can it be said that in effect that those within the particular space by the water would run out, taken out, are the only ones that have an interest and it's in the United States.

Ms Lois G. Forer: We don't say they're the only ones who have an interest.

We say that those people who abut in those communities which abut along a waterway have the right under existing law reasonably to use the water that flows pass them.

They do not have a right to take it out of the watershed and remove it from the stream.

Justice Hugo L. Black: You are drawing a distinction fairly true and on the basis of taking it out for use and putting it back.

Ms Lois G. Forer: That's right.

We say that if they used it and returned it to the stream even though of course there is some rule, but nevertheless that is a reasonable use that is quite proper.

But if they take it out of the stream and divert it to some other areas so that it is never returned to the people downstream that that is not permissible.

Chief Justice Earl Warren: Mrs. Forer, from an engineering standpoint, do you know whether it would be (Inaudible) or not -- for these people to return the effluent if they took it (Inaudible)

Ms Lois G. Forer: I do not know that because the engineering studies to which we have all adverted which of course they're not part of the record did not discuss the cause of making such a return.

And of course we believe that that would be a matter of record.

In conclusion, I would just like to say that we feel that this entire matter can properly be handled by this Court if the State of Illinois chooses any other action to ask leave to have this additional taking or diversion considered along with the others.

And thus, this Court could make an appropriate order with respect to this great interstate and international resource which could be effectuated and carried out by sovereigns having a complete power to do so.

Chief Justice Earl Warren: Before you sit down, do you -- do you believe that this matter could be determined without a master?

Ms Lois G. Forer: This particular --

Chief Justice Earl Warren: Proceeding.

Yes.

Ms Lois G. Forer: This particular proceeding --

Chief Justice Earl Warren: Yes.

Ms Lois G. Forer: -- no indeed, because we do not feel that any of the facts are alleged with such particularity that we can accept them at all.

We think all the questions of need and the feasibility of return and everything else would have to be explored in a factual manner by a master.

Justice Felix Frankfurter: Could you add to the -- everything else?

In addition, to mean the feasibility, could you particularize what you call everything else?

Ms Lois G. Forer: Well, I think that the need of a community of course is one thing.

The availability of other sources of water to which under our view of the law, they are rightfully entitled.

That has not been explored in the engineering study by Illinois which I have seen.

In other words, the only sources of water which were considered by these engineering studies were well water and the statement about the $16 per soap, and Lake Michigan water.

Now, as we all know, there are many streams, the Fox and the Des Planes among them which run through this area.

We do not know at this time whether those sources of supply would be adequate or appropriate.

We think that should be considered too.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Rankin

Mr. Rankin: Mr. Chief Justice, may it please the Court.

United States of America has a great interest in this controversy.

It has an interest by reason of the navigational facilities in the Great Lakes and the Saint Lawrence Seaway.

It has an interest because of the hydroelectric projects that had been developed in the Saint Lawrence Seaway and the effect of any diversion of water on that hydroelectric development.

It also has an interest because of the factor of pollution.

The Federal Government through the Department of Health, Education and Welfare has a great interest in that regard.

It has an interest because of these States and the fact that this matter has become a source of controversy and irritation between them and the United States thinks that it is an interest of the country that these great States having a common interest in this great resource should have this problem resolved and should be working on their common interest and problems and not be involved in this area of dispute which is making trouble between them.

It also has a great interest in the matter because of the international situation and the fact that our great neighbor on the north has a common interest with this -- in this great resource, our common activities in the Saint Lawrence Seaway, and the whole navigational problem, the use of the water for the cities and communities on it.

We have carefully examined Original 15 and we believe that this Court has jurisdiction that the complaint should be allowed to be filed, that the case should be considered along with two, three and four together so that the whole problem could be properly resolved.

But there is no question of what this Court has the power to enter a declaratory judgment as in the original action.

And we think the decisions we have cited in our brief well support that.

The basic problem in this case involves the rights of the riparian.

We think there is no question to what the State of Illinois properly represents these communities as water users within the State in this litigation and that any decree this Court would enter would bind the State of Illinois.

And if they want to divert water from the Lake of Michigan, and this Court would say they would have to return the effluent to that lake as a condition.

The State of Illinois would have to abide by that condition and every water user within the State that was -- and that the State was acting on behalf of and it would bind it.

And these, the decisions of this Court make that very clear.

In fact this Court has acted in the past to say that water users themselves were not proper parties in the litigation of this character.

And that the States as quasi sovereigns would properly before in trying to resolve the interest of their water users.

The problem we have is the question of the diversion of water out of the watershed by riparian interest.

And the basic theory of riparian water has always been if you take water out and you put it back less the consumptive use.

And therefore the common interest in the use of that pool of water is injured only to the extent of the actual consumptive use and no more.

Now this problem presents the question of diverting it out of the watershed and not returning it.

This Court has approved that type of action in two different matters involving riparian waters or waters where the riparian doctrines were recognized by the laws of the States that were involved.

One was the case of the City of Boston where it was clearly taken out of the watershed, several rivers, and devoted to the use of the City of Boston because of its needs.

The other one was the City of New York, New Jersey against New York, where a similar provision was made.

And we think that the decisions of this Court have made it very clear that the principle equitable apportionment governs in these conflicts or disputes between States involving matters of this kind.

The Court throughout the -- its history in the consideration of the litigation between States has said that it is not going to be bound by special rules of law that it is just going to devote itself to resolving those problems by the law of what is fair, just, and equitable between these great sovereigns that make up these United States.

And that is the consideration that we think the Court must turn to in resolving this particular question.

If the needs are found upon proper trial to be such that this community for its life has to have this water, and it can be fairly and just to be done under equitable principles, then we think this Court has the power to say that it can be diverted even out of the watershed and it will not return to the lake.

That is a problem that will have to be resolved in the case upon a hearing, but it's not involved in our opinion in this question of whether the complaint is properly filed or should be allowed to be filed at this time.

Now, I don't want to argue 2, 3 and 4 before you, but I think I need to touch upon it briefly in order to show you how it's related.

The Court -- the Court, Members of Court have asked questions about whether or not this problem could be solved by allowing Chicago to furnish the water.

The United States does not think that solves the problem because this is out of the watershed and there isn't as we read the decree of this Court in Wisconsin against Illinois, there is not anything involving the supplying of water as domestic pumpage to cities or communities outside of the watershed to be -- and diverted for that purpose.

So that it appears to us that the decree in those cases contemplates domestic pumpage entirely as water that would be used within the watershed.

Now, it does provide for diversion of the water after use outside of the watershed.

And that's why I think I need to deal very briefly with the -- what the Court decided in the earlier decree in Wisconsin against Illinois.

The Court will recall there were two different decisions.

One was by Chief Justice Taft and the later one by Justice Holmes.

And the basic principle that was involved was that the City of Chicago over a term of years had been engaged in withdrawing or diverting large amounts of water from Lake Michigan down through the complex of the Chicago Ship Canal and Des Planes River into the Illinois River.

And it was a question of what authority legally there could be for such a diversion.

On the first opinion the Court recognized that the diversion was basically made because Chicago did not have a proper sewage system.

And instead of providing such as system it just proceeded to dump all its sewage right down this Chicago Ship Canal and leave it as a problem.

And it got so bad that something had to be used to flash it out.

And so they wanted to use the water from the lake in very large quantities as much as 8500 cubic feet per second to flash out this canal that was serving as a sewage disposal for the City of Chicago.

The Court appointed the Master and the Master reported that Chicago must have some kind of adequate sewage disposal system but there is no properly legal grounds for using this water in that manner.

And that the only real basis would be for the purposes of navigation.

Then the matter was considered later and the final decree was entered.

And you recall that first provided for a use of 6500 cubic feet per second.

And in 1935 that was to be reduced to 5000 cubic feet per second and then it was later to be reduced to 1500 cubic feet per second.

And that is what is being -- is allowed now under the decree and there were these certain reports.

Now, the Court didn't find that there was any legal grounds under water law for the use of that amount of water for this sanitary condition.

And they didn't find that it was necessary to have all of that water for purposes of navigation.

But the Court did find that under equitable principles the conditions were so bad in this situation, had grown so bad, that something had to be done about it and that Court under equity did not have to injure or destroy this community but could provide for the correction of the situation as rapidly as it could be achieved under any reasonable prospects.

So that was the scheme that was provided.

And it was -- as we see it, not contemplated, that the City of Chicago would have the right to use as domestic pumpage of more than what was described in the decree as the water that it would pump through its mains, and within -- probably for the communities that Chicago then had and its reasonable developments as a part of Chicago.

Justice William J. Brennan: Well, Mr. Solicitor what about the sales?

We understand they're now making to these other municipalities intervening to this complex in Chicago?

Mr. Rankin: I can't say from that decree whether the Court ever contemplated that that kind of sales would be made.

The Court carefully described in paragraph 3 of the decree that it would be such water as was pumped through the mains of the City of Chicago.

And I think in order to interpret that properly you have to back to the situation at that time and see what was being done in the Chicago area in handling the water.

And I think that could be established in -- by proper proof.

But I don't see any sign that anybody contemplated at that time that the water would be used outside of the watershed of the Lake Michigan as far as the use was concern.

Now, it was that -- it was contemplated to be diverted by -- after it passed through the sanitary system and then go down the Illinois River.

Justice William J. Brennan: Do we know whether any of these communities now getting water from Chicago are outside the watershed?

Mr. Rankin: I assume that they're not although I don't know.

Justice William J. Brennan: All right.

Mr. Rankin: We then get down to the problem after examining those decisions of the Court in 2, 3 and 4 of what was contemplated by the Court.

The Court provided the 1500 cubic feet per second for this function of taking care of navigation and flashing out whatever is necessary.

And then in -- on the top of that, it provided the domestic pumpage that Chicago would require.

Well that is a figure of about 1700 and that would be added on to the 1500 cubic feet per second that's specifically provided for.

The difficulty that the United States has had in 2, 3 and 4 particularly and we think it has a bearing directly upon 15 here is that we now have in the record, the information that was given us and we have tendered to the Court in our brief in 2, 3 and 4.

The statement of the Corps of Engineers that all that is required for navigational purposes in the Illinois River in the canal is 1500 cubic feet per second.

So, with the domestic pumpage being over 1700 cubic feet per second, that domestic pumpage itself would take all -- take care of all the navigational requirements of this canal and the Illinois River without water.

Now, the claims made that because of the pollution that's involved, because Chicago was not able to produce more than 95% purity with its treatment of the sewage that there is still a need for this additional water to produce -- to provide additional oxygen so that they can handle and take care of the needs of this canal and Illinois River because if the stream is -- if that is too greatly polluted, it can't be used properly for navigation.

Now, the difficulty we have with that is that in the decisions of the Court both the first and second, it seems very clear to us that the Court contemplated that there would be a complete treatment of sewage by Chicago.

That the Court provided a detailed plan for the sewage treatment and that plan contemplated that they would use this facility to treat all of the sewage.

Now, it was never -- I want to make it clear, it was never contemplated that the treatment would be perfect that it would be 100%.

It was contemplated that that treatment would be satisfactory to extent of 85% to 95% and they have come within that range.

In fact there is good showing that was made to me that they might really obtain the 95% they had recently because of some changes in their plant and additions and improvements that made it less satisfactory at the moment.

But there's a good prospect they might obtain 95%.

But there is also clear indication that there is a substantial portion as much as 3% annually of the sewage that they don't try to create at all.

They just open the gates and let it run down the river in the canal.

And consequently they have a condition of pollution by reason of that that would not occur at all if they would treat the sewage.

Now, it isn't a simple problem and that's why we suggest that it would be in the interest of these cases and the handling of this whole matter in this proper disposition to have a special master.

Because they say if we treat all the sewage and just -- don't just open up the gates when the flood times and let run down the canal, so we have all these raw sewage and pollution there, then we've got to have sewage plants that will be so large to take care of the flood waters that is entirely impractical.

On the other side, there is the contention that that isn't necessary that there are all kinds of reservoirs and receptacles that can be developed under proper methods of engineering known to sanitary engineers at this time whereby you hold this material, the sewage in these reservoirs and properly taken care of until you can process and through your sewage plants.

And then you don't throw all these raw sewage in and just ask these other bordering lake states to furnish the water to take care of it.

Now, the basic problem it seems to me deals in the area of equity and fairness between these states board -- bordering found the Great Lakes.

And that is if the city -- first, we have to start that the legitimate needs of the City of Chicago, one of the great cities of this country must be taken care of.

And I think there is no difficulty between the States in agreeing to that proposition.

But secondly that what ours of legitimate means?

Can it call upon the other states to accept or take upon themselves burdens that within reasonable limits are not necessary.

And I think that's the second part that has to be worked out and it would be best worked out by a special master in examination of the whole problem.

Because if --

Justice Hugo L. Black: I don't quite get what you mean by any burden on other States.

Mr. Rankin: Well, if there is -- and a withdrawal of waters that reduces the amount of navigation that can be conducted in the Great Lakes and the St. Lawrence seaway which would not be necessary if they would properly treat this sewage or if they would avoid, if they would furnish the facilities to see that this raw sewage was not thrown into this canal.

And therefore, they would not all the water they say they now in need to go in to canal because of the impurities they put in it themselves unnecessarily.

The burden is placed upon these other states.

If Chicago and Illinois take from -- divert from Lake Michigan water that is not really needed because to the extent of at least it's conceded at least five-eighths of an inch for each thousand cubic second feet of water that is diverted unnecessarily.

There is a direct bearing upon the amount of navigation traffic that can be handled in the Great Lakes and therefore each of the States as well as the United States generally loses by that effect upon navigation.

Justice Hugo L. Black: Another thing, the word loses, I didn't quite get the burden.

I thought you meant there was some burden on that to have Illinois lose that.

Mr. Rankin: No, no.

I didn't mean in that sense.

I meant that in the interest of trying to weigh the equities of what's fair in this situation it is unfair or inequitable to have Illinois ask to have more water than it needs to solve its situation.

And that is the position --

Justice Hugo L. Black: Do I understand -- I don't quite understand your basic premise.

Mr. Rankin: Yes.

Justice Hugo L. Black: Suppose it be true that there is some need of water at this time --

Mr. Rankin: Yes.

Justice Hugo L. Black: -- that is proven beyond any shadow of doubt that they need it, and they could get it from this lake.

Is it your position, they have a right as a matter of law to get that water merely because they need it?

Without taking into consideration the effect, the withdrawal of that water might have in the long run on a growing country, with an ever increasing population?

And then the likelihood, if that what's -- it might destroy not merely a great source of navigation where people could make money, or a great source of recreation and use here, something that the country needs.

Mr. Rankin: No Mr. --

Justice Hugo L. Black: I don't quite get why it would be enough for them to show that a particular community needs something at a particular moment.

Mr. Rankin: Oh, Mr. --

Justice Hugo L. Black: That's true in the west were they have droughts.

Mr. Rankin: Mr. Justice Black, I would not at all say that that was the principle involved.

I think the need is a factor that this Court will have to consider.

But they have no legal right that's why the equitable apportionment comes in to the question.

Justice Hugo L. Black: Suppose they needed enough to where they -- to be shown within the next five years they needed enough water below that lake two inches and that that would seriously affect navigation and I believe it that a State where it seems to have the -- if I'm not be as pure as it is and so forth.

Suppose they could show that, does that mean that they could on some basis of apportionment among the States around and get the water to the extent where they destroyed the great national value and the part of the international value that it have as a -- as a lake.

Mr. Rankin: No, not at all.

This Court would have to weigh that need and what it would involved as far as the rest of the lakes and the United States and Canada as well in accordance with our treaty obligations were involved and decide whether that need weighed against that and I think the Court would conclude in the case the due but of course that if need couldn't justify that injury to the rest of the country.

Justice Hugo L. Black: How can it be done without having a long range of view of the situation as it is now as distinguished from a situation which existed when the original decree was rendered with the knowledge that not merely Chicago and other areas there increasing in population and necessity for water, both for industry and domestic purposes but all over the nation.

How can it be decided?

I'm a little frightened about that -- of a problem that arises, the purpose important as it is to these communities, how can it possibly be treated in isolation?

Mr. Rankin: Well, the United States does not think it can be treated in isolation.

We think that the whole problem -- the value of this great resource is too great for the entire United States as well as all of these lake states and these great cities to treat it in isolation.

And that the whole matter should be carefully examined with the idea of providing legitimate needs where they can be but seeing that the country's interests are fully protected in doing so.

And we think that by treating the cases together and having a Special Master that will examine this whole situation --

Justice William J. Brennan: When you say treating them, the government, the system, you mean treat them as if they were just one case and not independent?

Mr. Rankin: Yes.

And having a Special Master that will examine the whole situation and bring in to the Court an up-to-date presentation of a factual situation and the various equities and considerations that should be properly taken into account that this matter could then be determined by the Court in such a way as to protect all of the interest involved and resolve this sore that is being -- is making trouble for these great states.

Chief Justice Earl Warren: You do not think General then that this -- this particular issue in this case could be handled in a -- in a short -- very short period of time to think that that would have to await the larger problem.

Mr. Rankin: Mr. Chief Justice, I think it would be unfair to the Court and the country try to resolve it too quickly because I'm fearful that the whole history of this litigation has shown a tendency, well, we're in such a bad situation because of what's developed that we've got to do something and everybody is prejudiced by the situation that has occurred and I don't think that's the best way to resolve a matter of this seriousness to our country.

Chief Justice Earl Warren: Mr. Solicitor --

Justice Felix Frankfurter: (Voice Overlap) --

Chief Justice Earl Warren: Finish your question.

Justice Felix Frankfurter: Go on.

Chief Justice Earl Warren: No.

Justice Felix Frankfurter: No, no.

Chief Justice Earl Warren: I was going -- I'm just going to ask you one thing about -- about Canada in this position.

I suppose, if we were to authorize the taking of water for this purpose, it would be very difficult for us to complain that Canada might do the -- might be doing the same thing, wouldn't it?

Mr. Rankin: Well, Canada has made a protest at some length.

We didn't think it was proper to develop it here because we didn't think that was the merits.

Chief Justice Earl Warren: Yes.

Mr. Rankin: But we would develop that for the Court in any case on the merits.

Chief Justice Earl Warren: Yes.

Mr. Rankin: It has claimed that because of two things, the Boundary of Waters Treaty and the Niagara Agreement, there is no right to divert any additional water from the Great Lakes system without the common action under those agreements.

There are questions as to whether they are entitled to what was brought a claim that they've made and we'd have to present those properly to the Court and the position of our country in regard to it.

But it is taking the position now and it was not done in regard to this litigation, I want to make it clear, but in regard to the legislation, that inquiry was made about yesterday, that any diversion was not permitted in light of those treaties.

Now, we would -- we think that on the hearing on the merits, we should develop that whole problem fully to the Court and what the legal rights are regarding.

But certainly, we have to measure whatever we have agreed to with Canada, what their rights properly are under those agreements against whatever we want to do as a nation.

Chief Justice Earl Warren: May I ask just one more question if I may.

If -- if the situation were to evolve so that this district would take this water for this purpose and then return the effluent, do you think that that would -- it would be unwise to proceed on the theory of that kind as being destructive of the other interest that are involved?

Mr. Rankin: Well, I don't believe that the States would have any objections if that was done.

The United States thinks there's a -- the problem isn't quite that simple.

We would still feel that the Court would have to decide whether the equities justified the Court in allowing that to be done taking it outside of the watershed even though it was moved back because under ordinary principles, that is isn't allowed even to -- even though they do return it to take it outside of the watershed.

Justice William O. Douglas: You -- you have all the watershed -- you have ultimately a question of pollution I suppose even with the -- with effluent because it's a --

Mr. Rankin: If you had enough of it, of course --

Justice William O. Douglas: (Voice Overlap) --

Mr. Rankin: -- the proof is pretty clear in the inquiry that I had that Milwaukee -- everybody is pretty busy putting effluent back.

Now how much the pollution is, I would like to see properly developed before a Master.

Justice Felix Frankfurter: Mr. Solicitor, on the -- since you've opened the light of each of this problem as -- I'd like to ask would it make some questions dealing with the (Inaudible)

Mr. Rankin: Yes.

Justice Felix Frankfurter: This problem and all its complexity and it's evolutionary weakness, is almost half century old --

Mr. Rankin: Yes.

Justice Felix Frankfurter: -- but it certainly began before the government, from my knowledge in 1912.

Mr. Rankin: I think it goes back 1900 Your Honor there.

Justice Felix Frankfurter: 1912 (Inaudible)

Mr. Rankin: Yes.

Justice Felix Frankfurter: -- when it came very active.

That's giving about half a century.

This Court on more than one occasion rather -- in rather implicit terms indicated that while of course access may be had and must be responded to by this Court under it's original jurisdiction this is not the best way to deal with this problem.

It has indicated the desirability of having a standing body of -- standing agency which will reflect the changing need and also the changing and growing and different methods of responding to this means.

A minute ago, you referred to the interest of Canada in a protest.

Thanks to my Brother Douglas, I have read the full text of that note of April 9th.

The very stiff note joined in as the debate showed by all the leaders of the various parties in Canada.

But, I want to know is this, with this long preempt.

What steps if any have been taken through the urging or the nagging or the stimulation of the Government of having such a standing body established among the States, between the States including also the presence of Canada whether if these -- these things will be brought out in their entirety instead of the almost necessary, limited, and sometimes mutilated way in which a litigation decide a conference controversy.

Mr. Rankin: Well, as the -- Mr. Justice Frankfurter, as the briefs of the States indicate here, they have a compact involving the States of the Great Lakes Basin and they are able to resolve many questions.

Justice Felix Frankfurter: Is there a standing, administrative mechanism under that contract?

Mr. Rankin: Yes.

Justice Felix Frankfurter: And is that operating the way the Canadian-American Joint Commission has been operating?

Mr. Rankin: Well, it's different but when they get involved in the controversy that properly involves the Boundary Commission, it's been the practice to submit that and there are certain areas that the Boundary Commission does not have any jurisdiction or try to act in.

But I think they have -- been able to handle things generally in that area.

But here, they need badly to have some facts developed and also some law developed as to what their rights are because they are --

Justice Felix Frankfurter: I'm just wondering whether the development of the fact wouldn't come more appropriately or more effectively with inner -- or oversight by such a joint body than by this appeal to litigation.

Mr. Rankin: Well, I thought --

Justice Felix Frankfurter: Of course, if it breaks down, it breaks down (Inaudible) a litigation, the pathology of social relations and where the Court is.

Mr. Rankin: I thought maybe I had the illusion that maybe I could help with that function and did try to do some work on it and had several days that I'd put in and the States were very helpful in answering questions and cooperative, each one furnishing information.

But when I got down to some further information that seem necessary, it seemed and I suggest to that -- maybe the States could work this out by them -- between themselves.

It seemed that it was impossible to get it done on that basis and there's a feeling I think on the part of the Illinois that they're entitled as a matter of right to do this and that they don't have to furnish such information or that a State --

Justice Felix Frankfurter: Does -- does Canada sit in on this compact --

Mr. Rankin: No.

Justice Felix Frankfurter: -- arrangements?

Mr. Rankin: Not on that part.

And I would question whether they would care to --

Justice Felix Frankfurter: (Inaudible)

Mr. Rankin: -- at that point.

Justice Felix Frankfurter: Well, it's one thing whether they can't, another thing to give them a chance --

Mr. Rankin: Yes.

Justice Felix Frankfurter: -- otherwise, you wouldn't get to rather shop and know that, I mean to take as a discredit, it wasn't at all.

Mr. Rankin: No.

Justice Felix Frankfurter: But they've been increasingly feeling it as you've indicated it.

Mr. Rankin: Yes.

Justice Felix Frankfurter: And of course, the thing is you want to be less -- less troublesome in the future, trying to be more troublesome, isn't it?

Mr. Rankin: That's right.

Justice Felix Frankfurter: You'll be --

Mr. Rankin: Growth population.

Justice Felix Frankfurter: The growth of population and a new seaway.

Mr. Rankin: That's right.

Justice Hugo L. Black: Mr. Rankin, I'd like to add one word of what Justice Frankfurter said.

I agree fully of that, the idea of it, (Inaudible) the Court has urged the States to get together.

Speaking for myself, in any such agreement of that kind, I'd work that out, I would think that the United States should have a representative by reason of the fact that the lake is a national asset certainly in some of its aspects.

It could not be properly treated without it when state compacts of course have to go to Congress.

But I -- I certainly want to back up what he said as to the great help that can come from having an effort by the States and those who handle it to get together rather than to try to submit it, it's difficulties on the lawsuit.

Mr. Rankin: I want -- I would like before I leave to make it very clear that the United States agrees with the remarks of Mr. Justice Black about the fact that nobody could dry up these lakes or even injure them without us being there to fight about it and insist that the lakes are a great resource not only of these area but of the United States.

Chief Justice Earl Warren: Mr. Wines.

Argument of William C. Wines

Mr. William C. Wines: Mr. Chief Justice, may it please the Court.

In brief reply to the arguments on behalf of the other states and the observations of the Solicitor General, may I return the Court's mind to the imperious exigency that is confronting these communities comprising some 90,000 inhabitants or more.

Your Honors, they are on the verge of extinction unless water is worth coming from Lake Michigan.

Our brief and the materials submitted to the Court do demonstrate notwithstanding deprecation of those brief by opposing counsel that there is no source of water except Lake Michigan for these communities.

Now, in the 1930 decree, if Your Honors please, this Court recognized the right of Illinois to take water for domestic pumpage without any odd measurement by the terms of that decree in cubic feet per second or gallons per second.

Chicago sanitary district in the means Illinois permitted to take the water to this necessary to sustain the life of her inhabitants and sustain the necessities of drinking, bathing, and industrial use.

The authority cited in our brief all testified to the fact that the use of water for domestic consumption is paramount, is primary that other uses such as contemplated uses for power even for navigation have to await the use for drinking daily, living itself.

There has been discussion as to whether any problems would arise for this Court's justification if Elmhurst Villa Park and Lombard would purchase water from Chicago.

We say with all the earnestness at our command that legally, the situation is precisely the same whether the water is taken directly by these municipalities or whether it's obtained through the intermediacy of the City of Chicago.

A gallon of water taken from Lake Michigan is a gallon of water taken from Lake Michigan whether it flows through Chicago's conduits or aqueducts built by some other instrumentality of the State of Illinois.

I'm not too clear and I certainly don't want to misrepresent the arguments of counsel for the other states but I didn't hear a serious challenge to the issue of need.

They do say they don't know.

No effort apparently has been made to ascertain the point in those sources of water rather than Lake Michigan and we assure the Court that they're right on such source.

I'm every anxious to impress on the Court this vital consideration.

Your Honors, we need that water and we need it in the very immediate future.

The suggestion has been made that a master be appointed.

Mr. Solicitor General Rankin suggested in his briefs in Numbers 2, 3 and 4 that such a supervisory functionary ought to be installed.

He does not say like he says that the complainant states in that case have not made any cause for relief and that there is no occasion to grant the relief at this time.

He suggests that a Master be appointed that have supervisory functions for reasons that we have submitted in our brief in response to that suggestion.

We don't think that there is any occasion for the appointment of a Master but be that as it may with respect to these three communities, there isn't -- the amount of water that we seek to take is imperceptively small.

It can't affect tonnage by a fraction of an ounce nothing that can be measured.

Now, practically however, there is a great difference between buying water from Chicago and obtaining it in the manner that is contemplated by these communities.

And one has only to have a general knowledge of Chicago and its environs to realize that for water to be taken through Chicago we'd have to tear up some of the most miles and miles and miles of the most highly developed, valuable real estate in the world.

The -- the consideration is impaired impractical whereas the solution that we propose is immanently feasible.

Much has been said about who is a riparian proprietor but there has been some suggestion that the periphery of the concept of the riparian interest depends on the contours of the watershed.

Well most of Chicago lies outside the Great Lakes watershed.

In some places, that -- that watershed is only a mile in width.

It's our submission, if Your Honors please, that the need here is urgent.

The amount to be taken is small.

We needn't fear these vague threats of vast depredations on the lake front.

There -- I won't say there'll never be another municipality that may need a little but there is -- there is no -- there are no municipalities that are going to take any -- any huge amounts from the lake and not put it back.

The economics of the region wouldn't support it.

What we're asking for is this.

We've been stopped from raising the revenues needed to build this vitally necessary plant by intimations from our sister states that if we sell those bonds, trouble will be made for someone.

We have no place to come but this Court for recourse.

And we are asking leave to fail this application and that its merits be considered as promptly as possible.

I am implying --

Justice John M. Harlan: Can I ask you a question before you sit down?

Mr. William C. Wines: Please Your Honor.

Justice John M. Harlan: What's the position of Illinois as you've been stated or are these communities on the return of the effluent?

Mr. William C. Wines: We say that it is not feasible, not practical, will do no good or be of no -- no particular help, the amount involved is that -- it can't be measured and the expenses enormous and that is our position.

However, we are most insistent on our right to take the water and use it.

We don't think that we have to return it.

Some of the suggestions here is that we don't even have a right to take it because we're not riparian.

That, Your Honors means, that these communities have to wither and perish.

And we can't believe that anything in the jurisprudence that should govern sovereign states in their relation requires any such result of that.

Thank you Your Honor.