PART I HISTORY OF THE CONTROVERSY The Sanitary District of Chicago is adjacent to the southwest end of Lake Michigan, in the county of Cook, State of Illinois. It is the urban district of Chicago and its environs, having an area of 437.39 square miles. Besides including all of the city of Chicago, there are 49 other incorporated cities and villages within its boundaries. It covers the entire water front of Cook County, some 33 miles by the shore line. Originally it drained to the lake, for the most part, both directly and by way of the Chicago River and the Calumet River. Its maximum length, north and south, is 49 miles, and maximum width 17 miles. The Sanitary District of Chicago was constituted by authority of the General Assembly of Illinois under "An act to create sanitary districts and remove obstructions in the Des Plaines and Illinois Rivers," effective July 1, 1889. The purpose of the organic law "was to provide a main channel or outlet and necessary adjuncts, in and by which 'the drainage including the sewage' was to be disposed of by the several municipalities of the district." Pursuant to the State enactment referred to, and subsequent amendatory acts, the trustees of the sanitary district have constructed a main channel or canal connecting the South Branch of the Chicago River with the Des Plaines River, an auxiliary channel connecting the North Branch with Lake Michigan near Wilmette, a pumping station at Thirty-ninth Street to pump South Side sewage in a 20-foot conduit away from the lake and to flush the South Fork with Lake water, an auxiliary canal, known as the Sag Channel, from the main channel to the Calumet River, and numerous other auxiliaries of less importance, including 13 miles of new channel for the Des Plaines River. The construction of the main channel, otherwise known as the Chicago Sanitary and Ship Canal, was begun in 1892. This channel was constructed from the Chicago River at Robey Street, southwest across the continental divide to the Des Plaines River above Joliet, a distance of 28 miles. It was intended to provide for the reversal of the Chicago River so that Chicago's sewage could be diverted from Lake Michigan to the Illinois River, with sufficient water taken from the lake to abate any nuisance along the valley. Apparently the authority of the War Department for the construction of the main channel was not considered necessary by the sanitary district trustees. The first request for a Federal permit made by the Sanitary District of Chicago was addressed to the Secretary of War under date of June 16, 1896, at which time excavation of the main drainage canal was well under way. This request was to widen and deepen the South Branch of Chicago River at designated points in order that it might have capacity to conduct to the head of the artificial canal a flow of 5,000 cubic feet of water per second at a velocity of 14 miles per hour. The request was granted by letter of the Secretary of War, dated July 3, 1896, under specified conditions, among which was the following: That the authority shall not be interpreted as approval of the plans of the Sanitary District of Chicago to introduce a current into Chicago River. This latter proposition must be hereafter submitted for consideration. Further permits respecting Chicago River improvement were granted November 16, 1897, November 30, 1898, January 13, 1899, March 10, 1899, and May 12, 1899. (See appendices.) On April 22, 1899, the sanitary district made application to the Secretary of War for permission to open the canal as soon as completed and discharge through it waters of Chicago River and Lake Michigan, reversing the current in the Chicago River. This permit was granted May 8, 1899, it being expressly stipulated that the permit was temporary and revocable at will; that it would be changed if found necessary to protect commerce in the river from unreasonable obstruction because of the current, or to protect property from injury; and also, "that it is distinctly understood that it is the intention of the Secretary of War to submit the questions connected with the work of the Sanitary District of Chicago to Congress for consideration and final action, and that this permit shall be subject to such action as may be taken by Congress.' An additional permit with reference to improvement of Chicago River was granted July 11, 1900. On April 9, 1901, the permit of May 8, 1899, was modified, restricting the flow through the Chicago River and its South Branch to a maximum of 200,000 cubic feet per minute, equal to 3,333% cubic feet per second. The permit recites that "it is alleged by various commercial and navigation interests that the present discharge from the river into the drainage canal sometimes exceeds 300,000 cubic feet per minute, causing a velocity of nearly 3 miles per hour, which greatly endangers navigation in the present condition of the river." Upon application of the sanitary district, another modification was made by the Secretary of War on July 23, 1901, permitting a flow of 300,000 cubic feet per minute between the hours of 4 p. m. and midnight, each day. Another permit, dated December 5, 1901, set the rate of flow at 250,000 cubic feet per minute (4,167 cubic feet per second) throughout the 24 hours of each day. Upon application of the sanitary district, dated December 29, 1902, a permit of the Sec retary of War was issued on January 17, 1903, granting permission to divert 350,000 cubic feet per minute during the closed season of navigation and requiring reduction to 250,000 cubic feet per minute after March 31, 1903. This is the latest permit issued. Conditions in the Calumet River in South Chicago becoming serious enough to menace the water supply near that point, the sanitary district drew up plans for the construction of an auxiliary channel connecting the Little Calumet River with the main channel at Sag. The plans contemplated the reversal of flow of the Calumet River so as to provide protection to the lake water from the polluted water of the river. In 1907 the sanitary district applied for a permit to construct this so-called Calumet Sag Channel and to draw through this channel 4,000 second-feet in addition to that authorized for the Chicago River. This permit was denied, whereupon the trustees of the sanitary district signified their intention of constructing the channel and making the withdrawal desired unless prevented by injunction from so doing. In 1908 the United States courts were requested to enjoin them from taking any further steps in this direction, so in 1910 the sanitary district made application to construct the Sag Channel and to withdraw the total amount already authorized for the Chicago River through two routes instead of one. A permit authorizing this was issued on June 30, 1910. The plea for an injunction is still in the courts. It was consolidated with the suit to enjoin compliance with the instructions of the Secretary of War relative to water diversions, the latter suit being brought in 1913. When the sanitary district extended its operations to include the north shore suburbs it was found necessary to provide an outlet for their sewers away from the lake. Accordingly the North Shore Channel was planned, to extend from the North Branch of the Chicago River at Lawrence Avenue to the lake shore in the village of Wilmette. A permit for its construction being applied for, the Secretary of War, on September 11, 1907, issued a permit for the purpose provided "that the total diversion of water from Lake Michigan through the Chicago River into the Illinois River shall be no greater than already authorized by past War Department permits." On February 5, 1912, the sanitary district filed with the Secretary of War an application for an "enlargement" of the permit of May 8, 1899, as modified by subsequent permits, to embrace a flow through both the Chicago and Calumet Rivers not to exceed 10,000 cubic feet per second. The petition was denied in a reply dated January 8, 1913, which went into the subject quite thoroughly and which was issued only after extended hearings at which opposition was raised by important interests in the United States and Canada. On March 23, 1908, the Attorney General of the United States caused to be filed in the United States Circuit Court, Northern District of Illinois, Eastern Division, a bill of complaint, No. 29019, seeking to enjoin the Sanitary District of Chicago from constructing the Calumet Sag Canal, diverting through it the waters of Calumet. River or Lake Michigan and reversing the current in Calumet River It was alleged by the Government that these acts would lessen, impede, and obstruct navigation in the navigable Calumet River, and would lower the level of Lake Michigan and thus decrease its navigability, and therefore were unlawful under section 10 of the river and harbor appropriation act of March 3, 1899, because they had neither been authorized by Congress nor recommended by the Chief of Engineers, United States Army, and approved by the Secretary of War. The respondent answered, denying or belittling each allegation, denying that the Calumet River was navigable within the meaning of the term, or that diverting water from Lake Michigan would lower its level, or that the act of March 3, 1899, was applicable or even a constitutional or valid enactment. At the same time the respondent claimed the project would benefit navigation; that State law required it to carry out the project; that it was the only authorized agency for providing the needed drainage and sewerage, and the proposed method was the only lawful one under State enactment; that it made application to the Secretary of War for a permit only as a mere matter of comity; and that the old Illinois and Michigan canal laws constituted authorization by Congress. This answer was filed March 23, 1908. Evidence of the complaint was taken from February 15, 1909, to July 8, 1909. The defendant proceeded to again open negotiations with the War Department and did not for a time take testimony on its own behalf. The Government testimony was directed to the questions of the effect of the diversion upon the navigable capacity of the lakes and their connecting waters, and the resulting injury to the interests of navigation. When, finally, on May 31, and June 1, 1911, the defendant took testimony, it was not directed toward meeting the testimony of the Government witnesses, but rather to establishing the desirability of the project from a sanitary standpoint and to showing that while there were other efficient methods for the disposal of the sewage of the Calumet district, the proposed dilution method was the cheapest. Thereupon the case rested while the defendant again negotiated with the Secretary of War. On March 18, 1913, the defendant renewed taking its evidence. On October 6, 1913, because of the refusal of the defendant to comply with the terms of the permit of the Secretary of War respecting the diversion through the Chicago River, the Attorney General caused another bill, equity No. 114, to be filed in the same court, |