LAKE MICHIGAN WATER DIVERSION TUESDAY, MARCH 3, 1959 HOUSE OF REPRESENTATIVES, The committee met, pursuant to adjournment, in room 1302, New House Office Building, at 10:10 a.m., Hon. Clifford Davis presiding. Mr. DAVIS. The committee will be in order. I will ask the cooperation of the visitors in connection with this hearing. We are resuming consideration of H.R. 1, a bill to require a study to be conducted of the effect of increasing the diversion of water from Lake Michigan into the Illinois Waterway for navigation, and for other purposes. We expect much of the testimony will be repetitious. It is all a matter of record. We have heard this before. I would ask you gentlemen with all courtesy to summarize your statements. If you do, we would certainly appreciate it, because as I repeat, this has all been made a matter of record previously and if we go over this over and over again, we just will not make the progress to which we are entitled. All of us are very busy. That does not mean we are not going to give this a most thorough hearing and the most thorough consideration, but I do ask you on behalf of the committee please to summarize your remarks, and please do not be repetitious, because we would like to conclude this hearing, and we must conclude this hearing today. Due to the fact that certain witnesses are in the city of Washington by reason of their position, we are going to call the outside witnesses first. First I am going to ask the Honorable Paul L. Adams, attorney general of the State of Michigan, if he will come around. STATEMENT OF HON. PAUL L. ADAMS, ATTORNEY GENERAL OF THE STATE OF MICHIGAN-Resumed Mr. PAUL ADAMS. Thank you very much, Mr. Chairman and members of the committee. I have a prepared statement and sufficient copies have been made available for distribution to the members of the committee. Mr. Chairman and members of the committee, first I will read a summary of my statement, which appears on the front of my statement, and then I have some very brief and informal remarks which I would like to make, and I would request that following that the committee hear the testimony of Mr. Milton P. Adams, because he has new matter which has been developed since we were here before 223 the committee 2 weeks ago, and the two are related. So if he could follow my statement, I would appreciate that. We wish merely this morning to make the three points that are set forth in the summary: I. The State of Michigan demands and insists that the State of Illinois and the Metropolitan Sanitary District of Greater Chicago answer the propounded interrogatories, and that this committee make an investigation of the activities of the Metropolitan Sanitary District of Greater Chicago for the purpose of finding out why this district has failed properly to collect and treat its sewage and industrial wastes. II. The protest of the Canadian Government recently received by our State Department-and which I understand will be released at 2:30 p.m. today-makes it imperative that the Congress refrain from passing H.R. 1 and similar bills until our Government has made a good faith effort to negotiate with Canada for a solution of the diversion problem pursuant to accepted principles of international law applying to the use of international systems of water. III. The Congress of the United States has no constitutional power or right to pass a law authorizing a diversion of water from Lake Michigan to the Mississippi River Basin for the purpose of assisting the State of Illinois and the Metropolitan Sanitary District of Greater Chicago to dilute or flush or in any manner carry away sewerage and industrial wastes. My full statement is as follows: I. The State of Michigan demands and insists that the State of Illinois and the Metropolitan Sanitary District of Greater Chicago answer the propounded interrogatories. In the statement which I presented to the committee on February 17, 1959, we propounded a number of interrogatories. Since that time I have addressed the following letter to Governor Stratton [reading]: At the hearings which were held by the subcommittee of the Committee on Public Works of the House on February 17 concerning H.R. 1 and similar bills, I delivered a statement (copy enclosed) containing certain interrogatories to be answered by the Metropolitan Sanitary District of Greater Chicago. Enclosed is a copy of "Interrogatories Addressed to the State of Illinois and the Metropolitan Sanitary District of Greater Chicago." With the exception of No. 1, which has been added, the rest of them are identical to the ones contained in my statement. The purpose of sending these interrogatories to you is so that we may secure answers to the questions which they contain. The answers to these questions will give the committee, the public, and yourself as well as ourselves the benefit of information which we all need to determine the deficiencies in the operations of the sanitary district. The hearings before the House subcommittee will resume on March 3. It would be most helpful if we could receive answers to the interrogatories prior to that time. Copies of this letter with transmittal letters were mailed to Mr. Castle, attorney general of Illinois, and to Mr. Root, attorney for the Metropolitan Sanitary District of Greater Chicago. I need not repeat these interrogatories here except to say that the following was added and made No. 1, the rest being renumbered to correspond [reading]: To the State of Illinois and the Metropolitan Sanitary District of Greater Chicago: 1. What is the amount of water taken from Lake Michigan as domestic, industrial, and commercial pumpage by Chicago and by other municipalities, by industrial plants or other establishments, which after use is discharged directly or indirectly into streams, conduits, sewers, or any other device, whose contents reach the Mississippi side of the divide? (a) Name these municipalities, industries, plants, and establishments and give the pumpage of each for the latest available year record. It can be observed that the answer to these questions calls for an investigation of the activities of the Metropolitan Sanitary District of Greater Chicago, which are relevant to the inadequacies and malfunctioning of its sewerage collection and treatment systems. It is certainly within the province of this committee to conduct such an investigation because, until the State of Illinois and the sanitary district satisfies you and the rest of us that it is doing everything known in the science of sewerage collection and treatment to assure proper handling of its industrial and domestic wastes, it has no business coming to Congress and asking for its permission to increase the amount of fresh water diversion from Lake Michigan in direct defiance of the limitations contained in the Supreme Court decree of April 21, 1930. II. Protest of the Canadian Government recently received by our State Department makes it imperative that the Congress refrain from passing H.R. 1 and similar bills until our Government has made a good-faith effort to negotiate with Canada for a solution of the diversion problem pursuant to accepted principles of international law applying to the use of international system of water. Since the hearings here on February 17 and 18, the Government of Canada has handed our State Department a strong note of protest against the provisions of these bills. This protest came about because the question was raised in the Canadian Parliament, where it was debated several times during the months of January and February. In these debates it is evident that the Canadians believe that the diversion of water imposed by these bills would seriously and adversely affect their navigational and hydroelectric interests in the Great Lakes-St. Lawrence Basin. In the face of such a protest what should the Congress do? Should this protest be ignored should Congress act in direct defiance to the protest or should Congress accord it the respect that it is due under accepted and sound principles of international law? If our Nation is to be respected among the powers of the earthif we expect other nations to treat their international obligations with respect-then certainly it behooves us in specific instances of this kind to act in the same manner in which we want to be treated by other nations. Let's not forget that our international policies as viewed by other peoples of the world are judged not entirely by what the President and the Secretary of State do or say, but also by what the Congress of the United States does or says. In fact, many nations insist that certain facets of our international policy is indicated by what appears in our newspapers, what is heard on the radio, and in fact even what private citizens say either at home or while abroad. Thus, if we expect other nations of the world to conduct themselves within the norm of accepted principles of international law, it behooves all of us, both officially and unofficially, to adhere to the same principles, which we call upon others to respect, when we are faced with making a decision with regard to a particular problem. On February 12, 1958, the Committee on Interior and Insular Affairs of the Senate sent to the Secretary of State requesting that it be provided with a memo on the international law applicable to the proposed diversion by Canada from the Kootenay River into the Columbia and from the Columbia into the Fraser. The committee also asked the State Department that the memoshould first analyze the law under the treaty of 1909; and, secondly, what the Department believes would be the rights of the parties under general international law in the absence, or in the event of abrogation of, the treaty. In August 1958 the State Department transmitted to the Senate Committee on Interior and Insular Affairs the study prepared by William Griffin, entitled "Legal Aspects of the Use of Systems of International Waters" and this study was printed as Senate Document No. 118. This is an exhaustive study of the principles of international law which should apply to the use of international water systems. It contains the statement of the Canadian position, the history of the negotiations leading up to the Boundary Water Treaty of 1909, and the part that the Chicago diversion played in the provisions that finally went into the treaty. Now, what were the principles of international law contained in this study which we call upon other nations to respect in dealing with the use of systems of international waters? These principles are finally outlined under "VIII: Conclusions Regarding Principles of Customary Law Governing Systems of International Waters," appearing on pages 89 to 91 of this document. [Reading:] It is believed that any examination, such as the foregoing, of the sources of international law demonstrates that there are principles of international law governing systems of international waters in the sense that if issues with regard thereto were to be posed before an international tribunal it would pronounce judgment in accordance with such principles. Bearing in mind that as used in this study "system of international waters" refers to an inland watercourse or lake, with its tributaries and distributaries any part of which lies within the jurisdiction of two or more States, and "riparian" and "coriparian" refer to States having jurisdiction over parts of the same system of international waters-it is believed that an international tribunal would deduce the applicable principles of international law to be along the following lines: 1. A riparian has the sovereign right to make maximum use of the part of a system of international waters within its jurisdiction, consistent with the corresponding right of each coriparian. 2. (a) Riparians are entitled to share in the use and benefits of a system of international waters on a just and reasonable basis. (b) In determining what is just and reasonable, account is to be taken of rights arising out of— (1) Agreements; (2) Judgments and awards; and (3) Established lawful and beneficial uses; and of other considerations such as (4) The development of the system that has already taken place and the possible future development, in the light of what is a reasonable use of the water by each riparian; (5) The extent of the dependence of each riparian upon the waters in question; and (6) Comparison of the economic and social gains accruing, from the various possible uses of the waters in question, to each riparian and to the entire area dependent upon the waters in question. 3. (a) A riparian which proposes to make, or allow, a change in the existing regime of a system of international waters which could interfere with the realization by a coriparian of its right to share on a just and reasonable basis in the use and benefits of the system, is under a duty to give the coriparian an opportunity to object. (b) If the coriparian, in good faith, objects and demonstrates its willingness to reach a prompt and just solution by the pacific means envisaged in article 33 (1) of the Charter of the United Nations, a riparian is under a duty to refrain from making, or allowing, such change, pending agreement or other solution. The foregoing principles are not entirely new. They are merely restated so that we may understand them in connection with specific controversies which has arisen between our Government and Canada. They apply equally to us as well as to Canada. They apply equally to the diversion of water at Chicago, which this bill proposed to augment, as they do to the intentions of Canada to divert the waters of the Columbia and other rivers, which might cause us injury. I should like to emphasize the principles stated in No. 3(b), which in substance states that whenever the coriparian nation objects or files a protest against a proposed change in the existing regime of international waters, the nation desiring to make the change should refrain from putting it into effect until opportunity has been afforded to negotiate and satisfactorily compose the difference, and if such negotiations fail to achieve a mutually satisfactory solution, then the matter should be referred to arbitration or the International Court of Justice. So here we are, all of us, knowing that the Canadian Government has lodged a vigorous protest with our State Department against the augmentation of the diversion at Chicago proposed in these bills. If we expect to abide by the principles of international law which our own Government has laid down by its State Department, the Congress of the United States, including each member of this committee, should refrain from passing any law which would cause us, our Government, the President, the Secretary of State, embarrassment not only in the conduct of our relations with Canada, but in the conduct of our relations with the other nations of the world. Therefore, gentlemen of this committee, I am most strongly urging upon you that H.R. 1, and all other similar bills, either be tabled or that they be reported out with the recommendation that they do not pass. III. The Congress of the United States has no constitutional power or right to pass a law authorizing a diversion of water from Lake Michigan to the Mississippi River Basin for the purpose of assisting the State of Illinois and the Metropolitan Sanitary District of Greater Chicago to dilute or flush or in any manner carry away sewerage and industrial wastes. At various times it has been stated that H.R. 1, as well as its companion bills, were beyond the power of Congress to enact because the Constitution of the United States did not delegate to the Congress the power to divert water from one basin to another for the purpose of aiding the sanitation facilities of a State which seeks such diversion. Despite the decision of the Supreme Court in the cases of the State of Wisconsin, et al. v. the State of Illinois, et al. (281 U.S. 179), (resulting in the decree of April 21, 1930) that the diversion of water for sanitation purposes was "inadmissible," everybody from the State of Illinois has proceeded blissfully along in direct defiance of this |