Historical Background

In 1889 the Sanitary District of Chicago was formed and by 1900 had completed the construction of the Chicago Sanitary Canal. The canal extended from the Chicago River to the city of Lockport on the Des Plaines River, a distance of 28 miles (see map attached).† A canal depth of 24 feet and a capacity of 10,000 c.f.s. were provided.

Between 1902 and 1920 the amount diverted to the Sanitary Canal varied from time to time but seems to have been authorized at 4,167 c.f.s. An application by the Chicago Sanitary District to the Secretary of War in 1912 for permission to increase its diversion to 10,000 c.f.s. caused considerable uneasiness in Canada. Accordingly protests against any increase in the diversion of water from Lake Michigan were made to the United States Government by Canada in 1912, 1913, 1916, 1921, 1923 and 1924. In 1930 the United States Supreme Court enjoined Chicago from using more than 1,500 c.f.s. from Lake Michigan in addition to domestic pumpage (the total is approximately 3,200 c.f.s.).

In the negotiations leading to the Boundary Waters Treaty of 1909, attempts were made by Canada to take account of the Chicago Diversion but these were unsuccessful. Lake Michigan, under the Treaty of 1909, is not a boundary water but flows into boundary waters. In consequence, the provisions of Article II are applicable to Lake Michigan which means that there are two limitations on the use or diversion of its waters. The first is that Canada may "object" to a diversion of water which would be productive of "material" injury to its navigation interests. The second is that "injured parties" in Canada have the same legal rights and remedies as if the injury took place in the United States.

Various bills to increase the diversion were introduced between 1937 and 1943. All died in congressional committees. Other bills, to increase the diversion by 1,000 c.f.s. for three years on an experimental basis, were introduced between 1952 and 1957. In 1954 and 1956 two bills passed by Congress were vetoed by President Eisenhower. Copies of representations made by Canada are attached.²⁶⁶

United States navigation and hydro-electric interests — Great Lakes navigation and State of New York power — have opposed additional diversion at Chicago and are continuing to do so.

Current Developments

In 1957, a similar bill to authorize the Chicago Sanitary District, under the Secretary of the Army, to test the effect of an additional 1,000 c.f.s. diversion on the Illinois Waterway has been introduced in Congress. The purpose of the bill is stated to be to study the effect of such a diversion upon commerce among the several states, navigation on the Great Lakes and the Illinois Waterway and the effects on the level of Lake Michigan. The report is to be made to Congress by 1961 and is to contain recommendations with regard to future diversions.

The Lake Ontario Engineering Board Report (1955) to the International Joint Commission on the effect of the temporary diversion indicated that the maximum reduction in lake levels would be about 5/8 inch but that this reduction would have no significant effect on navigation. It did indicate, however, that the total computed loss in energy to the United States and Canada would be 420,000,000 kilowatt hours spread over 15 years.

On March 11, 1957, the State Department presented to the Canadian Embassy an Aide-Mémoire (attached)²⁶⁷ stressing the sanitary needs of Chicago, and the possibility provided by the bill before Congress for the United States Public Health Service to study and evaluate water quality conditions in the Illinois Waterway. The State Department enquired whether further diversions of Canadian waters from the Albany basin to the Great Lakes basin could, in addition to the amounts which have been diverted at Long Lac and Ogoki since 1940, be made and it expressed the hope that Canada might refrain from "interposing objections" to the proposed legislation. It suggested that Corps of Engineers and Public Health officials were available to explain what studies would be carried out.

The Provinces of Ontario and Quebec were consulted and they both expressed opposition to the temporary diversion of 1,000 c.f.s. Ontario advised that no additional water could be guaranteed from the Long Lac - Ogoki diversion.

On June 6, 1957, the Canadian Embassy handed an Aide-Mémoire (attached)²⁶⁸to the State Department pointing out again that a temporary diversion would be injurious to navigation and hydro-electric generation in both countries and accepting the offer to send representatives of the United States to Canada.

After hearing these representatives on July 9, 1957, the Canadian group (including representatives from Ontario and Quebec) concluded that:

1. The real purpose of the legislation is to deal with sanitary problems and that additional diversion is not required for navigation on the Mississippi River or the Illinois Waterway.
2. The United States Public Health representative is not convinced of any urgent present health need for additional diversion at Chicago, although there is undoubtedly a nuisance.
3. The United States Public Health representative believed that other measures for pollution control might be taken such as: separation of storm and domestic sewers; treatment of industrial organic waste at the source; chlorination of effluent; and artificial aeration in the waterway.
4. The representative of the Corps of Engineers and the Public Health Service intend to include in their report an economic assessment and the feasibility of the measures outlined in (c) in addition to their examination of the advantage of using additional diverted water.

There is no assurance that the present bill before Congress will be vetoed by the President. In addition, a two-thirds vote in Congress can override a Presidential veto. The voting so far indicates that those in favour of the pending legislation approximate two thirds. Furthermore, if the bill were vetoed there is the possibility that next year a new bill providing for a permanent diversion of a larger volume of water might conceivably be introduced and passed even over a Presidential veto.

The Advisory Committee on Water Use Policy has examined the matter and is of the view that any representations made to the United States should take into account the precedent that might be created as regards the Columbia River. In each case, the waters which would be diverted are wholly within the jurisdiction of one country. A Canadian "protest" on grounds of navigation in the Chicago case would undoubtedly be invoked as a precedent against Canada in the Columbia (or Yukon) case where navigation rights are also involved.

There would seem to be three main possible courses of action:

1. to oppose the diversion formally and forcefully,
2. to cease "interposing objection" as requested by the United States (see page 2),
3. without specifically objecting or not objecting, to assume that the proposed legislation will be enacted and to express Canadian understanding that the investigation of all possible alternative measures for dealing with sewage including industrial waste will be carried on simultaneously; to reserve all Canadian rights of action for damages (including loss of power in Quebec as well as in Ontario), to suggest compensation to Ontario hydro-electric interests for any compensatory water introduced into the Great Lakes system; to maintain the position already taken of pointing out the damage that will accrue to both countries; and to emphasize that the sanitation problem is a domestic one for the United States to solve.

There are risks inherent in following either course (a) or course (b). If diversion is opposed outright and the United States goes ahead with its proposed legislation, course (a) may, without any gain on the Chicago question, injure the Canadian position on the Columbia River where we shall undoubtedly wish to maintain that diversion of waters within Canada is a matter of exclusively domestic jurisdiction. If a position of firm opposition is to be taken eventually it would be better for Canada to choose its time and have a showdown on the issue in 1961 when the question of a permanent diversion will undoubtedly arise. In fact, for the next several years there would be comparatively little injury caused to Canadian hydroelectric interests in Ontario and Quebec for several fortuitous reasons. At Niagara the United States has not yet rebuilt the Schoellkopf plant and in consequence Ontario Hydro is using as much of the American share of the water as it can handle. At Barnhart the generators will not be in full operation until 1959. At Beauharnois the additions proposed by Quebec Hydro will not be completed for several years. With respect to course (b), silence or simple acquiescence might seem to exhibit a weakness in the Canadian position and encourage Chicago to make greater and more insistent demands.

Accordingly, course (c) would appear to be best. It has several specific advantages:

1. The showdown on Chicago would be deferred until about 1961. In the meantime comparatively little injury would be done to Canadian hydro interests whereas in 1961 immediate injury could readily be proved;
2. During the next four years the problems associated with Article II of the Boundary Waters Treaty in relation to the Columbia and Yukon Rivers should be settled. Accordingly Canada would approach the Chicago Diversion in 1961 freed of present inhibitions with respect to Article II;
3. Present indications are that the report of the United States Public Health Service will state that Chicago has not exhausted all the possible measures for dealing with waste disposal and that, in fact, there are measures which could be taken which would be more efficient than mere dilution. The report of the United States Public Health Service might turn out to be a very strong argument in support of Canadian opposition to any further substantial diversion from Lake Michigan at Chicago after 1961.

Recommendation

The Secretary of State for External Affairs with the concurrence of the Minister of Northern Affairs and National Resources recommends that an Aide-Mémoire along the lines of the attached draft be delivered to the State Department immediately.²⁶⁹

John G. Diefenbaker

[PIÈCE JOINTE/ENCLOSURE]

Projet d'un aide-mémoire

Draft Aide-Mémoire

Useful conversations between United States and Canadian officials were held in Ottawa on July 9, 1957 on the subject of the sanitation problems which give rise to the proposed legislation for a three-year temporary diversion of 1,000 cubic feet per second from the Great Lakes system at Chicago to the Mississippi system and on the subject of studies to be carried out under the proposed legislation.

The Canadian Government understands that if the legislation is enacted these sanitation studies will not be limited to evaluating the effects of dilution but will include consideration of all possible measures for dealing with waste disposal facilities at Chicago. Such measures would include:

1. complete separation of storm sewers from the domestic sewerage system or expansion of the existing treatment facilities to serve a total combined flow;
2. treatment of organic wastes in industrial plants before discharging these effluents into the sewerage system;
3. chlorination of effluent before discharge into the Illinois Waterway; and
4. artificial aeration of the Waterway.

The treatment of sewage in the Chicago area is, of course, a matter entirely within the jurisdiction of the competent legislative bodies within the United States. It is understood that present treatment of waste represents a vast improvement over conditions which existed in former years and that under the present day uses of the water the waste is more a nuisance than a menace to the public health in the area.

In considering the economics of improved waste disposal, it is assumed that full consideration will be given to the economic harm which may be done to navigation and hydro-electric generation in both countries.

It is not possible to give a firm undertaking to provide flows of a particular volume through the existing Long Lac and Ogoki diversions to the Great Lakes basin during the three-year period envisaged by the United States legislation. However, if it were possible to offset part of the effects of the Chicago diversion by inflows from the Albany basin in Canada, it would seem equitable that an equivalent amount of water should remain available for use in hydro-electric power generation by the Ontario interests at St. Marys Falls, Niagara Falls and in the International Section of the St. Lawrence River until the effects of the temporary diversion will have ceased to be felt in the Great Lakes system.

All rights under the provisions of the Boundary Waters Treaty of 1909 are specifically reserved.

²⁶⁶Voir volume 20, les documents 613, 615 et 616, et volume 23, document 249.
See Volume 20, Documents 613, 615, and 616, and Volume 23, Document 249.

²⁶⁷Voir/See Volume 23, Document 253.

²⁶⁸Voir/See Volume 23, Document 254.

²⁶⁹Le 5 septembre 1957, le Cabinet a convenu qu'il faudrait faire connaître aux États-Unis les vues du gouvernement «along the lines suggested by the Prime Minister and that the proposed aide-mémoire for delivery to the U.S. be redrafted in slightly stronger language.» L'aide-mémoire révisé, dont le libellé a été très légèrement modifié, a été remis au département d'État le 6 janvier 1958.
On September 5, 1957, Cabinet agreed that the government's views should be made known to the United States "along the lines suggested by the Prime Minister and that the proposed aide-mémoire for delivery to the U.S. be redrafted in slightly stronger language." The revised aide-mémoire, which contained very slight changes in language, was delivered to the Department of State on January 6, 1958.