Papers Relating to the Foreign Relations of the United States, 1926, Volume I

711.4216 M 58/80

The British Ambassador (Howard) to the Secretary of State

Washington, February 5, 1926.

No. 91

Sir: With reference to your note No. 711.4216M58/72 of November 24th last,² I have the honour to inform you that the Government of Canada has given careful consideration to your statements in regard to the permit issued to the Sanitary District of Chicago by the Secretary of War on March 3rd, 1925, for the diversion of water from Lake Michigan.³

The Canadian Government desires to express its appreciation of the clarity and definiteness of the interpretation of the current permit contained in your notes of June 15th⁴ and November 24th. It is understood that the 8500 cubic second feet which the Sanitary District is authorized to withdraw includes the reversed flow of the Chicago and Calumet rivers, but is exclusive of the 1200 cubic second feet drawn from Lake Michigan for domestic purposes by the City of Chicago and eventually passing through the Sanitary Canal. The Canadian Government agrees that although, so interpreted, the permit does not effect any immediate reduction of the amount of water withdrawn, on the other hand it does not authorize—as there has been some ground for believing—an increase in the withdrawal beyond the amount previously in fact abstracted. It is further noted that it is the belief of the Government of the United States that the installation of sewage works and the metering of water supply and other measures will result by December 31st, 1929, in a reduction of the present total of 9700 cubic second feet to a figure between 8000 and 6700 cubic second feet, and by 1935 or earlier to 4167 cubic second feet.

In the situation which has resulted from the policy of the Sanitary District in relying for sanitary purposes upon a diversion of water from the Great Lakes, the Canadian Government appreciates the force of the view set forth in your note of the 24th November that the abstraction could not be entirely and immediately ended without imperilling in some degree the life and health of the citizens of the locality, but it has not been made acquainted with the considerations which have convinced the Secretary of War that the whole of the present withdrawal is essential on these grounds, and it has been strongly represented to the Dominion Government that a distinctly smaller flow would serve the sanitary needs of the district. In any case, the fact remains that on every day that the diversion continues it carries most serious loss to Canada and to every community on the Great Lakes and on the St. Lawrence, by reason of its effect in hindering navigation, in increasing the cost of harbour and canal and river improvements, and in reducing the hydro-electric power capable of development. The degree to which the considerations advanced as to the necessity of the diversions in the interests of the health of the citizens of the Sanitary District should carry weight would appear, further, to depend hereafter upon the degree of goodwill and effectiveness displayed in the carrying out of the works which have been made a condition of the permit.

The Dominion Government cannot conceal the apprehension in this connection, aroused in Canada by certain proposals for the construction of an Illinois and Mississippi waterway, proposals embodied in measures already introduced into Congress during the present session, or reported as about to be introduced, and which appear to be based and to depend upon the indefinite continuance of the abstraction of the water of the Great Lakes through the Chicago Sanitary District Canal, and even upon the increase to 10,000 cubic feet per second of the amount abstracted. It feels certain that the Government of the United States will agree that whatever temporary and limited concessions might be made upon the ground of public health, no other ground warrants the withdrawal of water from the Great Lakes, much less the extension of the present diversion. It believes it to be a recognized principle of international practice that unless by joint consent, no permanent diversion should be permitted to another watershed from any watershed naturally tributary to the waters forming the boundary between the two countries, and in any case the decision of the United States Supreme Court of January 5th, 1925,⁵ recognizes that in the present instance, the Treaty of January 11th, 1909,⁶ expressly provides against uses “affecting the natural level or flow of boundary waters” without the authority of the United States or the Dominion of Canada within their respective jurisdictions, and the approval of the International Joint Commission agreed upon therein.

In conclusion, the Government of Canada desires to express its appreciation of the evident desire of the Government of the United States to find a solution of the problem fair to all interests, and its hope that such a degree of progress will shortly be attained as will warrant those who now suffer from the diversion in counting upon its early termination. The Canadian Government would, in this connection, appreciate any statement which you may find it possible to make as to the progress which has been attained by the Sanitary District and by the Municipality of Chicago in the provision of the measures called for by the conditions of the current permit which will actually diminish the abstraction from the Great Lakes.

I have [etc.]

Esme Howard

2. Ibid., p. 567.
3. Ibid., p. 561.
4. Ibid., p. 564.
5. Sanitary District of Chicago v. United States, 266 U. S. 405.
6. Malloy, Treaties, 1910–1923, vol. iii, p. 2607.