Case Western Reserve Journal of International Law Volume 18 | Issue 1 1986 Lake Diversion at Chicago Bruce Barker Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Bruce Barker, Lake Diversion at Chicago, 18 Case W. Res. J. Int'l L. 203 (1986) Available at: https://scholarlycommons.law.case.edu/jil/vol18/iss1/10 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Lake Diversion at Chicago by Bruce Barker, P.E.* I. INTRODUCTION Diversion of Lake Michigan water to the Mississippi River watershed at Chicago is the oldest and largest out-of-basin transfer from the Great Lakes. Before 1938 the amount of water diverted was as much as 10,000 cubic feet per second (cfs) annually. As a result of intense legal disputes starting at the turn of the century and ending over fifty years ago with a decree of the U.S. Supreme Court Illinois' diversion is now limited. I Subsequent challenges in the 1950's resulted in another decree in 19672 limiting diversion to 3,200 cfs. The legal principles involved in the Chicago diversion cases are few, though profound: - A state has no right to divert navigable waters in such an amount to impair navigation without direct authority from Congress; - Until Congress has acted, the U.S. Army Corps of Engineers may use its permit authority to restrain a state's diversion; - The Corps permit is a revocable license and cannot create a right to divert; - Damages to riparian owners on navigable waters resulting3 from a diversion authorized by Congress are not compensable. This article will describe lake diversion at Chicago in physical and operational terms as it now exists under the controlling decrees. This article will then present chronologically the historical development of the diversion and the resulting legal disputes emphasizing the balancing role of the state in developing a navigable waterway while attempting simulta- neously to protect Chicago's water supply. The legal standing of lake diversion at Chicago will then be summarized. * Illinois Dept. of Transportation Division of Water Resources. Daniel Injerd, Division of Water Resources, Illinois Dept. of Transportation, contributed to the discussion of the "Lake Michi- gan Water Allocation Process." I Wisconsin v. Illinois, 281 U.S. 179 (1930). See ILL. DEPT. OF TRANSp. Div. OF WATER RESOURCES, GREAT LAKES WATER DIVERSIONS AND COMSUMPTIVE USES: CHARTING A COURSE FOR FUTURE PROTECTION 35 (1983). 2 Wisconsin v. Illinois, 388 U.S. 426 (1967). 3 A. MARIS, REPORT OF SPECIAL MASTER: WISCONSIN V. ILLINOIS (U.S. S. Ct. Dec. 8, 1966) presents an excellent legal history and a good factual and historical summary. CASE W. RES. J. INT'L L. Vol. 18:203 II. THE DIVERSION A. Purpose The diversion prevents treated municipal and industrial wastewaters and polluted stormwater runoff from entering Lake Michigan and de- grading the water supply source. Water withdrawn and used for munici- pal and industrial water supply is conveyed through sewers to treatment plants into streams and waterways, which carry the flow away from Lake Michigan into the Illinois River watershed (Mississippi River Basin).4 The main reason for carrying away the flow is sanitation but the diverted flows also maintain navigable depths on a system of waterways. The wa- terways provide an important, man-made, navigable link between deep draft lake ports and shallow draft waterways of the Mississippi River system. The two uses -sanitation and navigation- are very compatible in physical requirements and are jointly served by the same system of rivers and canals. In legal stature, the uses are different. Navigation is a feder- ally protected use which, at least in the eastern United States, has the highest possible legal standing.5 All serious legal attacks have been against the sanitary diversion, which has been shielded behind the feder- ally protected navigation use since 1930.6 The controlling decrees do not restrict Illinois water supply withdrawals from Lake Michigan. The 3,200 cfs limitation is only on the amount of water diverted where the effluent is not returned to the lake. B. Diversion Works and Operation The main diversion outlets are the Lockport lock, powerhouse, and controlling works. Water is discharged to the Des Plaines River, a navi- gable tributary of the Illinois River and part of the Illinois waterway. Lockport is thirty-six miles down the Illinois waterway from Lake Mich- igan and 290 miles up from the Mississippi River. Most dry weather flow passes through a hydroelectric powerhouse adjacent to the lock. The remainder is discharged from the navigation lock. Floodwaters are discharged through the controlling works. The diversion formula of the decree is framed around the discharge at Lockport and adds or subtracts other flows that are diversions from or to the lake but do not pass Lock- port or cannot be measured at Lockport. 4 Id. at 86-90. 5 While the low ranking of sanitation can be inferred from the lake diversion cases, it is inter- esting that the Boundary Waters Treaty of 1909, art. VIII gives the following priority order: domes- tic, sanitary, navigation, power, irrigation. Treaty Relating to Boundary Waters and Boundary Questions, Jan. 11, 1909, United States - Great Britain, 36 Stat. 2448, T.S. No. 548 [hereinafter cited as Boundary Waters Treaty of 1909]. 6 A. MARIS, supra note 3, at 400-02. 1986] LAKE DIVERSION COMPOSITION OF DIVERSION IN A TYPICAL YEAR Public water supply 52% Stormwater runoff 30% Direct diversion 18% Discretionary 10% Navigation makeup 4% Lakefront lockages 3% Lakefront leakage 1% 7 Total 100% Direct diversion is admitted into the river-canal system above Lock- port at three locations: Wilmette pumping station, Chicago River con- trolling works, and O'Brien controlling works. The Wilmette pumping station is fifty miles from Lockport via the North Shore channel, the North and South Branches of Chicago River, and the Sanitary and Ship Canal. The Chicago River lock and controlling works is thirty-six miles from Lockport via the Chicago River and the canal. The O'Brien lock and controlling works are thirty-five miles from Lockport via the Little Calumet River and the Calumet-Sag Channel.8 Except during storm pe- riods, river stages at the Chicago River and the O'Brien controlling works are maintained at two feet below normal lake level by adjusting direct diversion inflow and the discharge at Lockport.9 Most of the dry weather flow at Lockport emanates from four large sewage treatment plants: Northside, West-Southwest, Calumet and Clavey Road. The re- mainder of the dry weather flow consists of natural low flows of the Chi- cago River, the Little Calumet River and the Grand Calumet River; direct diversion; lockage water at the Chicago River and the O'Brien locks; industrial effluents; and effluents from smaller sewage treatment plants.10 Stormwater runoff from the diverted watersheds of the Calumet River and the Chicago River (673 square miles) is discharged to the river-canal system through hundreds of storm sewers and several large pumping stations. In a severe storm combined stormwater inflow could exceed 250,000 cfs, which greatly exceeds the capacity of the Sanitary and Ship Canal. A maximum discharge of 30,000 cfs can be achieved at Lockport only by lowering the upper pool level seven feet below normal 7 Daniel Injerd, Chief Lake Michigan Management Section, Illinois Dept. of Transportation, Division of Water Resources (1985). 8 NAT'L OCEAN SURVEY, UNITED STATES GREAT LAKES PILOT 429-53 (1976). 9 33 C.F.R. §§207.420 - .425 (1985); ILLINoIs DEPT. OF TRANSP. Div. OF WATER RE- SOURCES, LMO 77-1, LAKE MICHIGAN WATER ALLOCATION 22-23 (1977). 10 ILL. DEPT. OF TRANSP., supra note 9, at 17, 20-39. CASE W. RES. J. INT'L LV Vol. 18:203 and allowing the river levels at the Chicago River and the O'Brien con- trolling works to rise seven feet above normal. If the river levels continue to rise, excess flows must be discharged to Lake Michigan to prevent catastrophic flooding of subways, expressways, underpasses, and build- ings. Since closure of the O'Brien controlling works in 1965, which di- verted the stormwater of the Calumet River Basin toward Lockport, backflow events have occurred every year. 1 Stormwater runoff from the diverted watershed is part of the 3,200 cfs limit of the 1967 decree. The long term average runoff is about 660 cfs. Discharges at Lockport are now measured by an acoustic velocity meter at Romeo Road, three miles above the Lockport controlling works. Some of the diverted lakewater never passes Lockport and is dis- charged from sewage treatment plants to streams in the Des Plaines River and the DuPage River watersheds (Illinois River Basin). Under the state water supply allocation program, as more suburban communi- ties receive Lake Michigan water, these flows will increase in order to phase out well supplies and to reduce overdraft on the deep sandstone aquifers. Withdrawals from the deep aquifers are now three times greater than the rate of recharge. Pumping levels are dropping rapidly. Construction of the Tunnel and Reservoir Plan (TARP) to reduce flooding, stormwater pollution, and backflows to the lake will also alter diversion patterns. Current and anticipated changes in diversion pat- terns necessitated a revision of the diversion accounting formula in 1980. III. DIVERSION DEVELOPMENT AND LITIGATION A. Illinois and Michigan Canal The Illinois and Michigan Canal was authorized by Congress on March 2, 1827.12 The act contains an implied authorization of diversion "to unite the waters of Illinois River with those of Lake Michigan ..