APPENDIX VI

PERMIT OF DECEMBER 5, 1901

Whereas, under date of May 8, 1899, the Secretary of War granted permission unto the Sanitary District of Chicago to open the artificial channel from Robey Street, Chicago, to Lockport, and cause the waters of Chicago River to flow into the same, upon the following condition, inter alia:

"2. That if at any time it becomes apparent that the current created by such drainage work in the South and main branches of Chicago River be unreasonably obstructive to navigation or injurious to property, the Secretary of War reserves the right to close said discharge through said channel or to modify it to such extent as may be demanded by navigation and property interests along said Chicago River and its South Branch."

And whereas the Secretary of War subsequently directed said Sanitary District of Chicago to regulate the discharge of water into the Chicago drainage canal so that the maximum flow through the Chicago River shall not exceed 200,000 cubic feet per minute from midnight to 4 p. m., nor 300,000 cubic feet per minute from 4 p. m. to midnight; and

Whereas said Sanitary District of Chicago has applied to the Secretary of War for permission to increase the flow between midnight and 4 p. m. daily to 250,000 cubic feet per minute, and the Chief of Engineers has recommended that the increase applied for be granted, but that the rate of flow from 4 p. m. to midnight be reduced to 250,000 cubic feet per minute, so that the flow through the Chicago River shall not exceed 250,000 cubic feet per minute throughout the 24 hours of the day;

Now, therefore, this is to certify that, in accordance with the recommendation of the Chief of Engineers, the Secretary of War hereby gives unto said Sanitary District of Chicago permission to regulate said discharge so that the maximum flow through the Chicago River shall not exceed 250,000 cubic feet per minute throughout the 24 hours of the day, upon the following conditions:

1. That this permission shall be in lieu of the present authorized rates of flow as stated above.

2. That the permission herein given shall be subject to such modification as in the opinion of the Secretary of War the public interests may from time to time require.

3. That said Sanitary District of Chicago shall be responsible for all the damage inflicted upon navigation interests by reason of the increase in flow herein authorized.

Witness my hand this 5th day of December, 1901.

WM. CARY SANGER, Assistant Secretary of War.

APPENDIX VII

PERMIT OF JANUARY 17, 1903

Whereas, under date of December 5, 1901, by an instrument supplementary to the original permission granted by the Secretary of War, May 8, 1899, to the Sanitary District of Chicago, to open the artificial channel from Robey Street, Chicago, to Lockport and cause the waters of Chicago River to flow into the same, the Secretary of War, pursuant to authority reserved in said permission of May 8, 1899, gave permission to the Sanitary District of Chicago to regulate said discharge so that the maximum flow through the Chicago River shall not exceed 250,000 cubic feet per minute throughout the 24 hours of the day, upon the following condition, inter alia:

"That the permission herein giyen shall be subject to such modification as in the opinion of the Secretary of War the public interests may from time to time require."

And whereas the said Sanitary District of Chicago has applied for permission to increase the flow through the Chicago River from 250,000 cubic feet per minute to 350,000 cubic feet per minute during the closed season of navigation, in order to carry off the accumulation of sewage deposit which line the shores along said city;

Now, therefore, this is to certify that, in accordance with the recommendation of the Chief of Engineers, the Secretary of War hereby gives unto said Sanitary District of Chicago permission to increase the flow through the Chicago River from 250,000 cubic feet per minute to 350,000 cubic feet per minute until the 31st day of March, 1903, after which date it shall be reduced to 250,000 cubic feet per minute, as now authorized, upon the following conditions:

1. That the permission herein given shall be subject to such modifications as in the opinion of the Secretary of War the public interests may from time to time require.

2. That said Sanitary District of Chicago shall be responsible for all damages inflicted upon navigation interests by reason of the increase in flow herein authorized.

Witness my hand this 17th day of January, 1903. [SEAL.]

WM. CARY SANGER,

Assistant Secretary of War.

APPENDIX VIII

WAR DEPARTMENT, Washington, September 11, 1907.

SIR: Referring to your letter of 2d instant, in which you request approval of proposed drainage channel to connect Lake Michigan at Wilmette, Ill., with the North Branch of the Chicago River; also permission to construct a pile crib in Lake Michigan at mouth of same, and to deposit filling within the limits of such crib, I beg to inform you that the War Department will interpose no objection to the project as set forth in your letter and indicated on drawing submitted, provided the following conditions are complied with:

1. That the pier constructions, the filling behind the same, and the excavation of the proposed channel shall be done subject to the supervision and approval of the local officer of the Corps of Engineers, United States Army, at Chicago, so far as to see that the work authorized is not exceeded;

2. 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;

3. That the work shall be commenced before December 31, 1908, and completed within five years thereafter.

Very respectfully,

G. M. WISNER, Esq.,

ROBERT SHAW OLIVER,
Acting Secretary of War.

Chief Engineer, the Sanitary District of Chicago,

American Trust Building, Chicago, Ill.

APPENDIX IX

PERMIT OF JUNE 30, 1910

WASHINGTON, June 30, 1910.

SIR: Referring to your application of 27th instant on behalf of the board of trustees of the Sanitary District of Chicago to open a channel from the Calumet River to its existing main channel so as to substitute two routes instead of one between Lake Michigan and its canal, I have the honor to advise you to the following effect:

It appears from the records of the department that by an instrument executed May 8, 1899, the Sanitary District of Chicago was given permission to connect its drainage canal with the South Branch of the Chicago River at Robey Street, in the city of Chicago, and to divert the waters of Lake Michigan through the Chicago River into said canal subject to certain specified conditions designed to limit the amount of such diversion and in other ways to protect the public interest. The permission so granted was subsequently modified at various times, and by an instrument executed December 5, 1901, the amount of flow was fixed at not exceeding 250,000 cubic feet per minute, equivalent to 4,167 cubic feet per second, which is the present rate allowed. At the time the original permit was given a connection with the Calumet River was not mentioned, but if it had been it is probable that a connection with that river as well as with the Chicago River would have been allowed.

So long as the water flow remains unchanged there seems to be no special objection to its extension to both rivers instead of confining it to a single one, especially since if the new (Calumet) route be developed later to a navigable state the double route will be advantageous to navigation interests. Accordingly, in view of the favorable recommendation of the Chief of Engineers and of the consent thereto by the Attorney General, under the conditions hereinafter prescribed, the department hereby modifies the existing permission so as to allow the division of the already permitted water flow in such a manner as to reach the sanitary district canal by way of the Calumet River and a connecting channel, as well as by way of its present route through the Chicago River, subject to all pertinent conditions of the existing permissions and to other express conditions, as follows:

(a) That it be 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.

(b) That if at any time it becomes apparent that the current created by such drainage work in the Calumet as well as Chicago Rivers be unreasonably obstructive to navigation, or injurious to property, the Secretary of War reserves the right to close the discharge through said channels or rivers, or to modify it to such an extent as may be demanded by navigation and property interests along said rivers.

(c) That the Sanitary District of Chicago must assume all responsibility for damages to property and navigation interests by reason of the introduction of a current in the Calumet as well as Chicago Rivers.

(d) That the amount of water withdrawn from Lake Michigan, through the Chicago and Calumet Rivers together, shall not exceed the amount of 250,000 cubic feet per minute (4,167 cubic feet per second) already authorized to be withdrawn through the Chicago River alone.

(e) That the permission herein given shall be subject to such modification as in the opinion of the Secretary of War the public interests may from time to time require.

(f) That this permission shall in no wise affect or in any manner be used in the friendly suit now pending in the Circuit Court of the United States for the Northern District of Illinois, brought by the United States of America against the Sanitary District of Chicago, to determine the right of the said sanitary district to divert from Lake Michigan for sanitary purposes an amount of water in excess of that now being diverted without having first obtained a permit from the Secretary of War.

(g) That the War Department shall have free access at all times to the waterflow records of the Sanitary District of Chicago, and free access also to the regulating works and all other parts of its canals for the purpose of checking records or making water-flow measurements.

(h) That the plans for the proposed work shall be submitted to and approved by the Chief of Engineers and the Secretary of War.

(i) That the work shall be subject to the supervision and approval of the Engineer officer of the United States Army in charge of the locality.

Very respectfully,

Mr. GEORGE M. WISNER,

ROBERT SHAW OLIVER,

Acting Secretary of War.

Chief Engineer, Sanitary District of Chicago, Washington, D. C.

APPENDIX X

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

It is needless to say that this litigation is of vital interest to the people of the State of Illinois. It was started nearly 15 years ago by bill filed in behalf of the United States of America against the Sanitary District of Chicago to restrain the defendant from diverting from the waters of Lake Michigan in excess of approximately 4,500 cubic feet per second.

The parties used the better part of six years in putting in the proof. The matter was then presented with appropriate briefs to my distinguished colleague, Judge Landis, for final determination. Judge Landis kept the matter under advisement for another six years, moved undoubtedly by the thought that the State of Illinois was being benefited all of the time by the withdrawal of 10,000 cubic feet a second by the defendant, and that the Government was not in any way actually harmed.

On June 19, 1920, Judge Landis rendered an oral opinion, finding in effect that the withdrawal in excess of 4,167 cubic feet a second by the Sanitary District of Chicago was without authority of law; that the withdrawals then being made reduced the level of Lake Michigan and other of the navigable waters of the United States to such an extent as to be an interference with navigation; that the Secretary of War, acting under congressional powers, had never given his consent to such excessive withdrawals; that the diversion by the sanitary district was therefore unlawful, and an injunction should issue.

A motion was made thereafter not for a reconsideration of the findings of the court but for the purpose of settling the terms of the final decree.

Attorneys for the sanitary district urged the evidence showed clearly that by the construction of weirs and other compensating works at a relatively small expense the Government could restore the various water levels which had been reduced by the flow into the drainage canal. They also urged that the State of Illinois, by appropriate legislation, had authorized the sanitary district to agree with the United States Government to stand the cost of such weirs and compensating works and their annual maintenance, and strenuously urged upon the court that as a condition to the entry of any injunction the plaintiff Government should agree to erect and maintain such works at the expense of the defendant. Counsel for the drainage district have also urged upon the court at this time to reconsider entirely the case upon the evidence presented.

This court is very much disinclined to interfere with the judgment of Judge Landis. At least it is entitled to the weight that would be given to the report of a master in chancery or special commissioner. In addition, this court has gone over the entire record and is able to say that it agrees with Judge Landis in every respect, although, from a legal standpoint, with some reluctance.

It is not necessary to go into the duties of the Secretary of War with respect to navigable waters. It is not necessary to discuss the question of whether when the State of Illinois entered the Union in 1818 it joined with special reservations with respect to its own police powers. A reading of the Federal decisions from Gibbons v. Ogden, 9 Wheat. 1, down to the present date leaves no escape from the thought that the States in adopting the Constitution surrendered to the central Government everything, without stint or reservation, so far as the terms of the Constitution are concerned. The right to regulate commerce was conferred with many other things, and that right imposed upon the central Government to see to it that navigation was not interferred with, either by individuals, the several States, or any foreign power. It is very true that it is the duty of the State of Illinois, in the exercise of its police power, to provide for the safety and welfare of its own people. On the other hand, if that safety and welfare depends upon the operation of the things granted to the central Government, the State of Illinois must look to Congress for eventual aid or relief.

The evidence shows, and Judge Landis found, and I find that the waters of Lake Michigan and other navigable waters of the Great Lakes have been reduced in level by the amount of water in excess of 4,167 cubic feet per second withdrawn from Lake Michigan by the defendant. From the standpoint of the practical mariner the testimony may not be satisfactory. It was given by engineers more or less highly technical but thoroughly equipped in their profession. In fact, no lake captain testified that by reason of the lowering of the level of Lake Michigan was navigation interfered with. I have grave doubts whether any boat has been stranded or delayed by reason of the action of the sanitary district.

On the other hand, the water levels have been reduced, and the 'Secretary of War, in whom is reposed the sole authority in matters of this kind, has determined that there was an interference with navigation, and a permit to the sanitary district to continue in its present withdrawals was refused.

The jurisdiction of the court has not and could not be challenged, and an injunction must issue against the defendant.

The record shows that the Sanitary District of Chicago has expended in its work some hundreds of millions of dollars; and the evidence shows rather conclusively that no other system of disposing of the sewage in the great district covered would work so well as that devised by the sanitary district. The city of Chicago since the drainage district began to operate has practically doubled in population. The district served by the sanitary district holds more people than over 40 States in the Union. The rate of typhoid fever since the comple