Chicago Lawyer -

Waterways have their time in court

April 29, 2010
By Robert Loerzel

It was Dec. 21, 2009, when Michigan Attorney General Michael A. Cox launched his legal battle with Illinois over Asian carp, but a much older date appeared on Page 1 of his motions. "In the Supreme Court of the United States," the documents read - "October Term, 1966."

It wasn't a typo. Cox was asking the U.S. Supreme Court to reopen an old, old case. During that 1966 term, the Supreme Court issued a decree, limiting how much water runs out of Lake Michigan into the Chicago and Calumet rivers, flowing down canals toward the Illinois and Mississippi rivers - a flow known as "the Chicago Diversion."

Now, Cox wants the Supreme Court to revisit that decree - as a way of blocking voracious Asian carp from getting into the Great Lakes through Chicago's canals and rivers.

But that 1966 date only hints at the epic duration of this litigation. This case began in 1922, when Wisconsin sued Illinois, blaming the Chicago Diversion for lowering the water level of the Great Lakes. The same case has come up time and again at the Supreme Court for almost eight decades.

Wisconsin v. Illinoishas been compared toJarndyce and Jarndyce, the endless chancery case in Charles Dickens' "Bleak House" - "so complicated that no man alive knows what it means," Dickens wrote.

In 1974, James E. Herget, a University of Houston law professor, observed that Wisconsin v. Illinois had achieved a similar level of complexity.

"Filed in 1922 and still going, this magnificent lawsuit has rivaled the legendary Jarndyce v. Jarndyce in its multiplicity of parties, references to masters, decrees, amendments of decrees, amendments of amendments of decrees, and its apparent indestructibility," Herget wrote in "The University of Illinois Law Forum." This litigation has kept so many lawyers working for so long that it "should go down as one of the great public works projects of the 20th century." And that was more than 30 years ago.

As of March, it remained to be seen whether the Supreme Court would bring Wisconsin v. Illinois back to life once again, as the Michigan attorney general wants. The governments sued by Cox - the state of Illinois, the Metropolitan Water Reclamation District of Greater Chicago and the federal government - argued that the old case has nothing to do with Asian carp.

Throughout its history, Chicago has been a battleground for Supreme Court arguments, congressional debates and diplomatic skirmishes over water.

The city is at the center of these controversies because it's a connecting point between two major water systems - the Great Lakes and the Mississippi River watershed. Now that connection has become a doorway for invasive species.

The Asian carp problem may be new, but the idea of that link between the water systems goes back centuries - to French explorers in the 17th century.

The start of the battle

In 1673, the governor of New France sent trader-cartographer Louis Jolliet and Jesuit priest Jacques Marquette into the heart of North America, seeking a passage to China and "the two kingdoms of Theguaio and Quivira which border Canada, and where gold mines are, it is said, abundant," according to "French Explorations 1756-1759."

They discovered neither gold nor the fabled Northwest Passage, but they were impressed by a "great river" that ran south, clearly heading toward the Gulf of Mexico.

After going as far south as modern-day Arkansas, the Frenchmen turned back north. They headed up the Mississippi River, turning up the Illinois River and finally taking the Des Plaines River. In September 1673, Jolliet and Marquette arrived at a spot they'd heard about from the Miami Indians - a portage where boats could be carried across land from the Des Plaines River to the Chicago River.

Jolliet later told Jesuit priest Claude Dablon about this place. It would be "a very great and important advantage" if travelers could go through a canal connecting the rivers, he said. According to Dablon, Jolliet said, "We could go with facility to Florida in a bark, and by very easy navigation. It would only be necessary to make a canal by cutting through but half a league of prairie."

During rainy seasons, the Des Plaines River sometimes rose so high that its water spilled through a little stream called Portage Creek and a swampy area known as Mud Lake into the West Fork of the Chicago River's South Branch.

This area was where travelers usually made their portage. They crossed over the subcontinental divide - the line separating the Great Lakes from the Mississippi River watershed - near the spot where the Cook County Jail stands today, said Evanston writer Libby Hill, author of the 2000 book "The Chicago River: A Natural and Unnatural History."

"There was a very slight rise of maybe about 10 feet that you might not ever have noticed," she said. "You would have thought it was flat. But in times of low water, it would be a subcontinental divide."

The idea of a canal persisted. In 1808, U.S. Treasury Secretary Albert Gallatin proposed building a canal similar to Jolliet's dream - a project that came to be known as the Illinois & Michigan Canal. President Thomas Jefferson saw it as a local issue that the federal government shouldn't get involved with, according to Hill's book. At first, Congress rejected the plan.

In 1827, however, Congress gave the state of Illinois some land for the canal. Workers began digging at Bridgeport in 1836, but the project stalled when the state government ran out of cash after the Panic of 1837. To save money, the state dug a shallow canal, scrapping more expensive plans to dig through limestone, Hill said.

The 97-mile Illinois & Michigan Canal finally opened in 1848, connecting the Great Lakes with the Mississippi. But, Hill said, the canal was too shallow to reverse the flow of the Chicago River, which still drained into Lake Michigan.

"The canal wasn't built to take the amount of water and sewage that was being dumped into it," she said.

As several historians note in books about Chicago, the Chicago River was the city's sewer, and by 1860 it was a smelly, sluggish stream of filth, so nauseating that city and state officials decided to reverse the river. They would send sewage south instead of allowing it to continue flowing into Lake Michigan, the source of Chicago's drinking water. In 1871, the I&M Canal was deepened and widened, but it still wasn't adequate to keep the Chicago River flowing south all the time.

A new canal was needed. But who would pay for it? The City of Chicago couldn't afford to take on such a huge project, so in 1889 the Illinois General Assembly enacted a law allowing for the creation of a unit of government, the Sanitary District of Chicago (known today as the Water Reclamation District of Greater Chicago).

In 1892, the Sanitary District began constructing the Chicago Sanitary and Ship Canal, running 28 miles from Robey Street (now Damen Avenue) on Chicago's South Side to Lockport.

At the time, this canal was the biggest excavation project in history, digging up 43 million cubic yards of earth, according to early 20th-century historian Seymour Currey.

Meanwhile, officials in St. Louis began to worry about Chicago's plans to send its filth downstream. Both cities had experienced outbreaks of typhoid. Missouri officials accused Chicagoans of sending their bacteria down the river toward St. Louis.

Alarmed that they were about to face a lawsuit, the Sanitary District hurried to finish the project. Early Jan. 2, 1900, officials broke open a temporary dam at Kedzie Street, using shovels, dredging machines, dynamite and fire. According to the Chicago Tribune , as the water came through, a cry went up: "It is open! It is open!" After letting the canal fill up with water for two weeks, officials opened the dam at the canal's western end in Lockport and Chicago's water poured into the Des Plaines River.

Later that day, Jan. 17, Missouri sued the state of Illinois and the Sanitary District of Chicago. "The 1,500 tons of undefecated sewage and filth now about to be daily injected into the waters of the Mississippi River . will pollute and poison the said water . to such an extent as to render it unwholesome and unfit and unhealthful for use for drinking," Missouri Attorney General Edward C. Crow said in a court document.

Five days later, the U.S. Supreme Court rejected Missouri's request for a preliminary injunction to close the canal. The next question was whether the lawsuit belonged in the Supreme Court. Attorneys for Illinois and the Sanitary District argued that it wasn't really a dispute between two states. Rather, they said, it was a conflict between private parties in Missouri and Illinois.

The Supreme Court sided with Missouri on this question, ruling that it did indeed have original jurisdiction. "If the health and comfort of the inhabitants of a state are threatened, the state is the proper party to represent and defend them," Justice George Shiras Jr. wrote in the majority opinion on Jan. 28, 1901.

The Supreme Court began taking evidence. Scientists sampled water at various spots, trying to prove whether Chicago's typhoid bacteria were entering St. Louis' drinking water.

Illinois and Sanitary District officials argued that Chicago's waste and bacteria were diluted by the flow of water from Lake Michigan into the canals and rivers. Scientists weren't the only people taking the witness stand. Residents who lived near the rivers also testified, saying the water seemed cleaner than before.

Summing up their testimony, Justice Oliver Wendell Holmes Jr. said: "There is nothing which can be detected by the unassisted senses, no visible increase of filth, no new smell. On the contrary, it is proved that the great volume of pure water from Lake Michigan, which is mixed with the sewage at the start, has improved the Illinois River in these respects to a noticeable extent. Formerly it was sluggish and ill-smelling. Now it is a comparatively clear stream to which edible fish have returned. Its water is drunk by the fishermen, it is said, without evil results."

Unconvinced by Missouri's scientific evidence, the Supreme Court unanimously dismissed the state's case without prejudice on Feb. 19, 1906. Holmes did note, however, that Missouri had raised an important issue. "It is a question of the first magnitude whether the destiny of the great rivers is to be the sewers of the cities along their banks or to be protected against everything which threatens their purity," he said.

Federal input

In 1907, the Sanitary District began planning the Calumet-Sag Channel, which would connect the Sanitary and Ship Canal with the Calumet River and create another outlet where water drained out of Lake Michigan. At first, the U.S. secretary of war refused to issue a permit. The Sanitary District eventually got its permit, but it also sued.

The question this time was whether the federal government had any control over these local waterways. Sanitary District of Chicago v. United States stretched on for 17 years. Finally, in 1925, the Supreme Court ruled that the secretary of war did have authority to regulate Chicago's canals, according to Hill's book. The decision put the U.S. Army Corps of Engineers in charge of making sure Illinois waterways were navigable.

The Cal-Sag Channel opened in 1922 - the year that Wisconsin filed its lawsuit, blaming the "Chicago Diversion" for siphoning water from the Great Lakes. Minnesota, Ohio, Pennsylvania, Michigan and New York teamed up with Wisconsin in the legal battle against Illinois and the Sanitary District.

Eight years later, the Supreme Court ordered Illinois and the Sanitary District to reduce the amount of water it was taking out of Lake Michigan by 1938. Illinois officials had wanted to drain as much as 10,000 cubic feet per second, but the court set a limit of 1,500 for navigational purposes. (That figure did not include the 1,700 cubic feet of drinking water that Illinois was taking out of Lake Michigan every second.)

The Supreme Court also ordered the construction of locks along Lake Michigan and told the Sanitary District to finish building its new sewage-treatment plants. Holmes said the court would not accept any excuses. "The defendants are doing a wrong to the complainants and . they must stop it," he said. "They must find out a way at their peril."

In 1932, the Sanitary District ran out of money to finish its treatment plants. In an extraordinary move, the Supreme Court ordered Illinois to raise money to finish the project. In response, the Illinois General Assembly enacted a law allowing the Sanitary District to borrow more money, and the project continued.

In the decades since then, Illinois and the other Great Lakes states have gone to the Supreme Court and Congress repeatedly, asking for changes in the amount of water allowed in the Chicago Diversion.

Other than a temporary increase during the drought of 1956, the limit has remained the same: 1,500 cubic feet per second for navigational purposes, according to a 2009 article in Sea Grant Law and Policy Journal . In 1967, the court set a limit of 1,700 cubic feet for drinking water.

Over all that time, Supreme Court justices followed the same basic principle, said A. Dan Tarlock, a professor at Chicago-Kent College of Law.

"The standard is equitable apportionment: What's a fair share for every state?" Tarlock said. "In the Chicago case, what they basically said was that . a relatively small drop in level has a big impact on navigation. So what's fair in the Great Lakes is very limited use of water."

Cooperation among the states improved after the Council of Lakes Governors formed in 1983, said University of Illinois at Chicago professor Martin S. Jaffe.

"They're actually working collaboratively together toward some type of management solution," he said.

"That's a very unusual happening. It's kind of a bottom-up type of initiative."

Invasive species

Until now, the Supreme Court cases involving Chicago's rivers and canals haven't touched on the subject of invasive species.

According to the 1920 book "Fishes of Illinois," the U.S. Fish Commission imported carp from Europe, introducing them into Illinois waters in 1879. By 1898, they had multiplied so fast that fishermen on the Illinois River were catching more carp than any other species.

In the 1970s, fish farmers in Arkansas imported the Siberian and Chinese varieties known as silver carp and bighead carp. The fish farmers used these voracious carp to keep their ponds clean of algae, but some of the fish escaped into the Mississippi during floods in the 1990s, according to court documents filed by Michigan. The carp have been migrating north ever since.

Other invasive species have entered the Great Lakes through the St. Lawrence Seaway, and some have traveled from Lake Michigan to the Illinois River, including the zebra mussel.

The Asian carp are spreading in the opposite direction.

Fearing that the carp would make their way into the Great Lakes through Chicago's canals, the Army Corps of Engineers built electrical barriers in the Chicago Sanitary and Ship Canal, designed to stop the fish from passing through. No Asian carp have been found yet in Lake Michigan, but recent tests found traces of Asian carp DNA on the other side of the barriers.

That prompted Michigan Attorney General Cox to file his litigation at the Supreme Court. "The urgent need for action cannot be overstated," he wrote, warning that the carp could wipe out many other species in the Great Lakes. "Partial measures are no longer an option."

Cox's solution is to close the locks and sluice gates where Lake Michigan's water flows into Chicago's rivers and canals.

Lawyers for Illinois, the Metropolitan Water Reclamation District and the Army Corps of Engineers say Cox's plan would devastate cargo business on the Illinois River. Closing the locks would also make it difficult for Coast Guard, police and fire department boats to respond to emergencies, they say. Cox responds that all of those concerns are exaggerated.

Michigan lost the first two rounds in this legal battle, when the Supreme Court rejected its requests for a preliminary injunction. The court was scheduled to review Michigan's request to reopen the Chicago Diversion case on April 16, as Chicago Lawyer went to print. Cox's legal adversaries say reopening the old case isn't a proper way of dealing with the carp controversy.

The Supreme Court's earlier decisions "had nothing to do with Asian carp, invasive species or water entering Lake Michigan," Illinois Attorney General Lisa M. Madigan wrote in a motion.

But, Cox argued, "The present controversy arises because the diversion project now provides a conduit for the introduction of extremely damaging invasive species to the Great Lakes."

Madigan protests that Illinois doesn't belong in this lawsuit, since the Army Corps controls the locks. But Cox argued that the Asian carp problem can be traced to the actions Illinois took in the 1800s, when it created the canals.

Cox is not alone in his calls to separate Lake Michigan from the Mississippi River system. Pennsylvania, New York, Ohio, Wisconsin, Minnesota and the Province of Ontario support his litigation. And the Alliance for the Great Lakes, an environmental group, called for a similar separation plan in November 2008.

Richard Lanyon, executive director of the Metropolitan Water Reclamation District, questioned whether the DNA tests actually prove that carp have crossed the electrical barrier.

Looking back on the history of Chicago's waterways, Lanyon said, "Without the canal system, Chicago would not have survived - as simple as that. . Now, today, you wouldn't get away with a project like that. But in the late 1800s, we didn't have the type of environmental advocacy that we have today."

Jaffe said invasive species and other Great Lakes issues will be major topics for the courts and government officials in the years ahead. Global climate change could cause droughts and lower lake levels, Jaffe said, so those old questions of how to share the water will persist.

"Water's going to be the big issue," he said.

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