Lake States and the Solicitor General, at the request of the Supreme Court, filed an amicus curiae brief.

After a consideration of the briefs of all the parties, this flagrant attempt of the Lake States, seeking to enlist the aid of the Supreme Court, to interfere with the exercise of its constitutional functions was appropriately disposed of by a summary denial of the reliefwith the right to renew their application if substantial facts were later presented-sought by New York and the other Lake States in the order of March 3, 1958, entered by the Supreme Court. This dismissal order, in our judgment, demonstrated the refusal by the Supreme Court to act in such a way as to interefere with the exclusive control by Congress over Federal waterways.

Subsequent to the Supreme Court order of March 3, 1958, however, the Lake States again attempted to frustrate the action of Congress by anticipating the introduction of H.R. 1, now pending before the House Committee on Public Works. They filed, on November 3, 1958, a so-called amended application. This document is essentially a rehash of the earlier documents summarily dismissed, on March 3, 1958, by the Supreme Court of the United States. All of the allegations made in this new amended application and their supporting brief are answered by the joint brief of the State of Illinois and the Metropolitan Sanitary District of Greater Chicago respectfully submitted herewith as appendix D for the information of the House committee.

Relative to Canadian opposition: In hearings on previous legislation to increase diversion, the Department of State had indicated opposition by Canada to the proposed 3-year increase in diversion. However, at the Senate Public Works Subcommittee hearing on H.R. 2, July 28, 29, and August 7, 1958-page 368-the State Department advised that Canada's opposition had been withdrawn for the proposed 1-year increase of 1,000 cubic feet per second in diversion. This information was contained in the presentation of Congressman O'Brien's statement read into the record just a few minutes ago.

Reams of testimony have been heretofore presented and countless witnesses, pro and con, have previously appeared on the pending legislation, and on simlar legislation in preceding sessions of the Congress.

Despite the voluminous supporting statements, of their respective views, and the heat engendered over the years between the advocates and those opposing this legislation, a calm analysis of the actual questions involved should demonstrate to unbiased observers that the issue is, in effect, fundamentally simple. And its solution by the same token, is likewise simple.

The residents of Illinois have demonstrated their good faith and their basic reasonableness in the compromises which have been suggested from time to time and are now incorporated in H.R. 1. This bill would enable a scientific study to be made. It would be made by trained, impartial men.

The repeated myth as to puffed up anticipated losses to navigation and by the power interests, if any diversion from Lake Michigan is authorized by the Congress, can by no stretch of imagination be applicable to the temporary 1-year increased diversion of 1,000 cubic feet per second authorized by H.R. 1.

On August 1, 1958, Major General Itschner, Chief of Engineers, transmitted to Senator Douglas-pages 373-375, Senate subcommittee hearings on H.R. 2, July 28, 29, and August 7, 1958-the report of the division engineer of the north central division at Chicago, evaluating the effects on lake levels and power of an increase of 1,000 cubic feet per second at Chicago for a period of 1 year. A summary of this study estimated that the maximum resulting lowerings of Lakes Michigan-Huron to be one-fourth of an inch and that it was not practical to evaluate the effects because of the small amount of the lowering. As to estimated losses of dependable hydroelectrical capacity at the Niagara and St. Lawrence plants the study found that they were of such temporary nature and small magnitude that replacement of the loss or substitution of the gain in capacity would not be justified.

One point the State of Illinois and the Metropolitan Sanitary District of Greater Chicago desires to emphatically make clear because of unsupported statements by opponents to the contrary. The additional temporary diversion provided in H.R. 1 is not sought as a substitute for the proper treatment of sewage of Chicago's metropolitan

area.

The sanitary district collects and treats to a very high degree, in three modern sewage treatment plants and several new smaller plants, more than a billion gallons of sewage daily. No other metropolitan area in the world has equal facilities or performs a comparable efficient operation. The American Society of Civil Engineers in 1955, selected our sewage treatment system as one of the seven wonders of American engineering.

The people of Illinois therefore respectfully petition their neighbors of the other States, through the Congress, to aid them by adopting H.R. 1 and thereby provide for the scientific procedure of tests and studies as proposed to be made by the Department of Health, Education, and Welfare, Public Health Service, and the Secretary of the Army.

Thank you, gentlemen.

Mr. DAVIS. Mr. Mack?

Mr. MACK. Mr. Fenlon, I am interested in the Canadian attitude on the subject of diversion. There has been considerable testimony before the committee this year and last that diversion will do substantial damage to the power and shipping interests of Canada. At the time that the Supreme Court ruled that 1,500 cubic feet could be diverted per second, were there any representations or arguments made by the Government of Canada that this was detrimental to Canada? Were they opposed to it?

Mr. FENLON. No, at no time has there ever been in the matters pending before the Supreme Court, has the Government taken the position that Canada had any right whatsoever to take a stand or had any legal rights as to the diversion of water at Chicago.

The treaty of 1909, the Canadian Treaty, specifically exempted in our judgment, and the briefs have been submitted to this committee before on that subject, specifically exempted Lake Michigan as a boundary water. No path of the rivers of Lake Michigan touches any Canadian border.

Mr. MACK. Now, if water is diverted to the extent proposed on a permanent basis would the U.S. Government be liable, perhaps not

legally but morally and as a matter of good international relations to recompense Canada for any damage done to her power or shipping? Mr. FENLON. If you ask me the legal question I will answer it. Morally I think that will have to be up to the Government itself to answer. Legally in my opinion Canada has no legal right whatsoever and the opinion of the Attorney General is in the record substantially to that effect, that whatever loss that was involved there was de minimus, meaning insignificant, and they would not recover. Canada was greatly disturbed, of course, and tries to inject the diversion of water at Lake Michigan at Chicago comparable to the Frazer River and the Columbia River diversion, that they are trying to take instead of letting the Columbia and the Frazer River flow back into the United States they want to cut it off and send it off into the Pacific Ocean there, and I assume that is what the Congressman has in mind.

The Attorney General, in the opinion that is in the record, in substance says there is no comparison between the two.

Mr. MACK. The Army engineers in their testimony last year, as I recall, said that the amount of power loss on the St. Lawrence and Niagara would be between $400,000 a year and $900,000, a major part of which would be loss to the Canadians. The question of whether we are morally obligated to recompense Canada for any damage done is something to be decided by Congress at a later date.

Mr. FENLON. They might have also told you, Congressman, that the United States is not now using all of the available water at Niagara, that Canada is using it and developing it and we are not using it because we haven't built the plants to use it, so that while there is supposed to be theoretically an equal division of the waters at Niagara under the 1950 treaty between Canada and the United States, Canada is using the water. They are using, I think the Army engineers figures I don't recall them offhand-but we were only using approximately one-third of the water that was available to the United States and Canada is also using it.

Incidentally, Canada is putting into Lake Superior 5,000 cubic feet per second of water that they also take again at Niagara and the United States does not participate in any of that diversion.

Mr. MACK. Still the engineers have testified that the amount of damage to the power facilities in Canada, their loss of power, would amount to something in excess of $200,000 and $450,000 a year. Is it your opinion that Congress may have to consider whether this Government is morally bound to recompense Canada to the extent to $200,000 or $450,000 or more per year for the amount of power the diversion takes away from Canada.

Mr. FENLON. I don't think so. First of all certainly the power interests of Canada and New York, for that matter they are both in the same boat, are bound, they have taken action, whatever they have taken subsequently has been subsequent to the decree of 1930 which says you can't have this much water, 1,700 roughly at that time for domestic pumpage and 1,500 of direct diversion, and they took-the new plants, however, are developed to a higher degree, eventually when they are built.

Mr. MACK. Of course, the question of taking away power from New York concerns only our own country. When we take away power from Canada or damage their navigation we are injuring a foreign country and might as

Mr. FENLON. My answer goes back to the treaty of 1909 which says in our judgment that Lake Michigan is not a boundary water.

Mr. MACK. Just one more question. In your opinion would our damaging the power potential of Canada by diversion establish a precedent that would make it easier for the Canadians to divert water on the Columbia River, thereby wreaking considerable damage to the U.S. power production?

Mr. FENLON. I assume that was the objective of your questions to begin with, and I tried to answer them by anticipating that. There is a complete difference. First of all, because of the amount involved of the damage to the United States which would probably exceed by 50 times the loss than Canada might inure by reason of 1,000 cubic feet per second for 1 year compared to what they would do to us in our Grand Coulee and the other irrigation projects and the hydroelectric projects that we have up there, and that is why Senator Neuberger withdrew his objections last year when Canada informed him they had no objection to it.

Mr. MACK. I realize that Canada has no objection to the 1-year diversion, but when we go into a permanent

Mr. FENLON. That is only the matter we are here on, I assume. Mr. MACK. Of course, the eventual object of this bill is to obtain a permanent diversion.

Mr. FENLON. We do not agree with you on that, Congressman. Mr. DOOLEY. Will the Congressman yield?

Mr. Chairman, I would like to specifically request at this time that I be allowed to incorporate the resolution opposing diversion of water from the Great Lakes watershed by the Lake Carriers Association. Mr. DAVIS. Without objection.

(The resolution follows:)

RESOLUTION OPPOSING DIVERSION OF WATER FROM THE GREAT LAKES WATERSHED BY THE LAKE CARRIERS ASSOCIATION

Whereas the several States and Provinces bordering on the Great Lakes hold title to those waters under a high public trust to protect and preserve them for the benefit of all their citizens; and

Whereas by the Boundary Waters Treaty of 1909, the United States and Canada have dedicated the waters of the Great Lakes to the primary purpose of commerce and navigation to be enjoyed by their citizens, subject only to certain uses by riparian States and Provinces not inconsistent with such primary purpose; and

Whereas by the law common to the United States and Canada, any diversion of such waters by any riparian or other user constitutes a wrong against all other riparian owners; and

Whereas any diversion of water from Lake Michigan lowers the natural level of that lake and Lakes Huron, Erie, Ontario, their connecting and tributary waters and the St. Lawrence River; directly impairs the natural depth of rivers and harbors, nullifies improvements therein, reduces the carrying capacity of Canadian and the United States Great Lakes fleets and increases transportation costs, all to the detriment and injury of the people; and

Whereas the waterborne commerce of the Great Lakes is indispensable to the growth and well-being of the United States and Canada; and

Whereas any diversion in one country gives rise to dispute between the people of that country and the people of the other country, which should in the interests of their friendly relations be referred for investigation and recommendation as to solution to some tribunal in which the people of the two countries have equal voice: Now, therefore, be it

Resolved, That the Dominion Marine Association and Lake Carriers' Association, in joint meeting assembled at Ottawa, Ontario, Canada, this 19th day of January 1959, do hereby express their unalterable opposition to any diversion of

water from the Great Lakes watershed and urge that the Congress of the United States refrain from passing legislation authorizing any diversion of water from the Great Lakes; and be it further

Resolved, That the two associations hereby urge that the United States and Canada refer to the International Joint Commission all questions concerning the diversion of water from the Great Lakes for full investigation and recommendation as to solution to the end that all controversies may be laid at rest and the rights of the people of the Great Lakes watershed be preserved; and be it further Resolved, That a copy of this resolution be furnished to the Chief Executive of the respective National Governments of the two countries and to each Governor or Prime Minister, as the case may be, of States and Provinces bordering on the Great Lakes and St. Lawrence River.

Mr. KLUCZYNSKI. I ask permission that Mrs. Church, Congresswoman from Illinois, be allowed to file her testimony following that of Mr. Daley.

I also ask that all Members of Congress from Illinois may file their statements following Mrs. Church.

Mr. Davis. Without objection, it is so ordered.

Mr. KLUCZYNSKI. Mr. Chairman, may I have permission that all the trustees of the metropolitan district of Chicago file their statements following Mr. Chesrow.

Mr. Davis. Without objection, that will be done.

Mr. KLUCZYNSKI. Mr. Peden, of the Chicago Association of Commerce and Industry, may his statement be filed following the statement of the trustees of the sanitary district?

Mr. DAVIS. That may be so done.

STATEMENT OF HON. MAGUERITE STITT CHURCH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

Mr. Chairman, I do appreciate this opportunity to testify in support of H.R. 1. As you know, this is the fifth time that I have joined with my colleagues from the Chicago area of the State of Illinois in pressing for enactment of legislation authorizing the testing of the effect of increased diversion of water from Lake Michigan into the Illinois Waterway. In the 82d Congress-and in each succeeding Congress-I have introduced a companion bill to that introduced by Mr. O'Brien, the dean of the Illinois delegation; and I have once more this year introduced such companion bill to H.R. 1.

We who know full well the need of the State of Illinois for the proposed action are grateful to this committee for previous votes of approval in regard to this legislation.

The need for this increased diversion has grown over these years during which we have sought enactment of the necessary legislation; and now, more than ever, we need prompt congressional action and prompt Presidential approval of H.R. 1.

As I have done in the past, I would express the need for increased water diversion so as to protect the health and life of the growing population in the Chicago area and along the Illinois Waterway.

The authorized diversion from Lake Michigan into the Illinois Waterway is still limited by law to only 1,500 cubic feet of water per second-despite the fact that there has been a population increase of well over 1 million in the area since 1933, when the existing limit was originally set.

At the time that the 1,500 cubic feet limitation was set in 1933, it was stated in the report as follows. “It does not appear possible to arrive at a conclusive determination whether this flow will afford suitable sanitary conditions on the waterway after the sewage purification plants at Chicago have been completed and placed in operation."

Since 1950, the Sanitary District of Chicago has been providing complete treatment for substantially all of its sewage. However, that sanitary district testifies that there is serious pollution in the upper 50 to 60 miles of the Illinois Waterway and that there can be no marked improvement until more fresh water is available.