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The Diversion of Interstate Waters in the United States
Published online by Cambridge University Press: 02 September 2013
Extract
Two cases which are concerned with the diversion of the waters of interstate streams were before the United States Supreme Court in the October term of 1937. One of them, Texas v. New Mexico, will be withdrawn from the Court docket when the Rio Grande compact signed by representatives of Colorado, New Mexico, and Texas and a representative of the United States on March 18,1938, enters into effect. The other case, Nebraska v. Wyoming and Colorado, was first argued before the Supreme Court in 1935. In May, 1938, the Court granted the petition of the United States for permission to intervene. Further written briefs and oral arguments were to be considered by the Court when the fall term of 1938 opened.
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- American Government and Politics
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- Copyright © American Political Science Association 1938
References
1 The bill of complaint was filed on May 20, 1901. Colorado demurred. The Court, in the opinion delivered by Mr. Justice Fuller, considered that intricate questions were involved, and decided to overrule the demurrer to permit Colorado to answer the bill of complaint in order that all the facts of the controversy should appear in the evidence presented to the Court. Kansas v. Colorado, 185 U.S. 125 (April 7, 1902).
2 Cf. the settlement arranged between Great Britain and Egypt concerning the waters of the Nile, which flows through arid land. Exchange of Notes between Mohamed Mahmoud Pasha, President, Council of Ministers, Egypt, and Lord Lloyd, British High Commissioner in Egypt, May 7, 1929. Great Britain, Treaty Series, 1929, No. 17.
3 Opinion by Mr. Justice Brewer, 206 U.S. 46 (May 13, 1907).
4 An acre foot is the quantity of water required to cover an acre to a depth of one foot—43,560 cubic feet.
5 The original bill of complaint was filed on May 29, 1911. A motion to dismiss, equivalent to a demurrer, was argued, and, on Oct. 21, 1912, was overruled without prejudice. The case was argued, and twice reargued, on final hearings, the United States participating in the last two arguments, by leave of the Court. Wyoming v. Colorado, 259 U.S. 419 (June 5, 1922).
6 For the decree of the Court, as modified from that of June 5, 1922 (259 U.S. 496), see 260 U.S. 1 (Oct. 9, 1922).
7 298 U.S. 573. See also 286 U.S. 494 (1932).
8 Cf. decree issued by the Supreme Court in New Jersey v. New York. See note 28 below. Cf. also authority given in exchange of notes between Great Britain and Egypt on May 7, 1929, to officials of Egypt to coöperate with the resident engineer of the Sennar dam on the Nile in the Sudan to measure discharges and records of the distribution of water and the regulation of the dam. Mohamed Mahmoud Pasha to Lord Lloyd, Great Britain, Treaty Series, 1929, No. 17.
9 Sec. 10 of act of March 3, 1899: “That the creation of any obstruction, not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; … and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Sec. of War prior to beginning the same.” 30 Stat. at Large, 1121, 1151.
10 For an extended discussion of the Sanitary District of Chicago situation, see Simsarian, James, “The Diversion of Waters Affecting the United States and Canada”, Amer. Jour. of Internat. Law, Vol. 32, p. 488 (1938)CrossRefGoogle Scholar.
11 For permits of Apr. 9, 1901, July 22, 1901, and Jan. 17, 1903, see Hearings before House Committee on Rivers and Harbors, on improvements of Illinois River, Illinois, and abstraction of water from Lake Michigan, 69 Cong., 1 Sess., pp. 202–203.
12 Cf. Missouri v. Illinois and the Sanitary District of Chicago, 180 U.S. 208 (1901) and 200 U.S. 496 (1906).
13 For opinion of Secretary of Stimson, War Henry L., Jan. 8, 1913, see Canada, Sessional Papers, 1928, Sess. Paper No. 227, p. 7Google Scholar.
14 Sanitary District of Chicago v. United States, 266 U.S. 405 (Jan. 6, 1925), the decree to be effective March 5, 1925.
15 For permit issued by Secretary of Weeks, War John W., see Canada, Sessional Papers, 1928, Sess. Paper No. 227, p. 48Google Scholar.
16 See Report of the Special Master, Charles E. Hughes, to the Supreme Court of the United States, Oct. term, 1927, Relating to Lake Levels, 70 Cong., 1 Sess., H. Doc. 178, p. 53.
17 Wisconsin et al. v. Illinois et at., 278 U.S. 367.
18 Ibid. (Jan. 14, 1929). See report cited in note 16 above.
19 Wisconsin et al. v. Illinois et al., 281 U.S. 696 (April 21, 1930). Cf. the second report of the Special Master and the opinion of Mr. Justice Holmes on April 14, 1930, in 281 U.S. 179.
20 Wisconsin et al. v. Illinois et al., 287 U.S. 568.
21 Wisconsin et al. v. Illinois et al., 289 U.S. 710. Cf. 289 U.S. 395.
22 On Aug. 21, 1937, Congressman Claude V. Parsons of Illinois introduced the following bill in the House of Representatives (H.R. 8327), which was referred to the Committee on Rivers and Harbors for hearings: “That in order to regulate and promote commerce among the several states and with foreign nations and to protect, improve, and promote navigation and navigable waters in the Mississippi Valley, the Secretary of War is hereby authorized and directed to withdraw from Lake Michigan, in addition to all domestic pumpage, an annual average of five thousand cubic feet of water per second, to flow into the current of the Lakes-to the Gulf Waterway heretofore authorized by Congress.” Cf. Article 8 of the draft Great Lakes-St. Lawrence River treaty submitted by the United States to Canada on May 28, 1938, which proposed that the diversion of water from the Great Lakes system, through the Chicago drainage canal, should be reduced by Dec. 31, 1938 to 1,500 c.f.s. as provided in the decree of the United States Supreme Court of April, 1930. Cordell Hull to SirMarler, Herbert, Press Releases Vol. 18, p. 631Google Scholar. For a further discussion, see Simsarian, James, “The Diversion of Waters Affecting the United States and Canada”, Amer. Jour. of Internat. Law, Vol. 32, p. 488 (1938)CrossRefGoogle Scholar.
23 Laws of 1926, Ch. 375; Laws of 1927, Ch. 321.
24 Connecticut v. Massachusetts, 282 U.S. 660 (Feb. 24, 1931). For the court decree entered March 23, 1931, see 283 U.S. 789.
25 282 U.S. 660, 670.
26 New Jersey v. New York, 279 U.S. 823 (May 20, 1929).
27 283 U.S. 336 (May 4, 1931).
28 New Jersey v. New York, 283 U.S. 805 (May 25, 1931). Cf. notes 7 and 8 above.
29 For text of the compact, see H. Doc. 605, 67 Cong., 4 Sess.
30 Aug. 19, 1921, 42 Stat. at Large 171.
31 Dec. 21, 1928, 45 Stat. at Large 1057.
32 June 25, 1929, 46 Stat. at Large 3000.
33 Arizona v. California el al., 283 U.S. 423 (May 18, 1931). The Court decision was on a motion to dismiss by the defendants.
34 Cf. Art. 4 of the Colorado River compact.
35 See also United States v. Arizona, 295 U.S. 174 (1935), and Arizona v. California et al., 298 U.S. 558 (1936).
36 Washington v. Oregon, 283 U.S. 801 (May 18, 1931).
37 297 U.S. 517 (March 2, 1936).
38 For the apportionment of the waters of the South Platte River, see the compact between Colorado and Nebraska, approved by Congress on March 8, 1926, 44 Stat. at Large 195. Cf. the La Plata River compact between Colorado and New Mexico, 43 Stat. at Large 796 (Jan. 29, 1925)Google Scholar.
39 June 17, 1902, 32 Stat. at Large 388.
40 295 U.S. 40 (April 1, 1935).
41 296 U.S. 553 (Dec. 23, 1935).
42 299 U.S. 510 (Oct. 12, 1936).
43 Order dated May 16, 1938, U.S. Law Week, Vol. 5, No. 37, p. 17Google Scholar.
44 Cf. U.S. Supreme Court Service, Oct. term, 1937, p. 1005Google Scholar.
45 296 U.S. 547. Cf. U.S. Supreme Court Service, Oct. term, 1937, p. 1006Google Scholar.
46 The Rio Grande compact was signed on Feb. 12, 1929, at Santa Fé, New Mexico, by Colorado, New Mexico, and Texas. After the legislatures of these three states approved the compact, Congress gave its approval on June 17, 1930, when it became effective. 46 Stat. at Large 767.
47 Texas v. New Mexico et al., 297 U.S. 698 (March 9, 1936).
48 Charles Warren was appointed on May 25,1936. Texas v. New Mexico et. al., 291 U.S. 644.
49 Cf. the “thalweg” cases which have appeared before the Supreme Court, in which the Court has examined the existing practices in international law to determine that the middle of the main channel of a boundary river formed the dividing line between two states. See Iowa v. Illinois, 147 U.S. 1 (1893); Louisiana v. Mississippi, 202 U.S. 1 (1906); and New Jersey v. Delaware, 291 U.S. 361 (1934).
50 Cf. the decision of the Federal Court in Switzerland and the Staatsgerichtshof in Germany where equitable principles were applied for the settlement of intercantonal and interstate controversies involving the diversion of waters.
In Switzerland, the Federal Court settled an action instituted by the canton of Aargau to enjoin the use in the canton of Zurich of the waters of the Jonabach River, a small intercantonal stream, for the generation of power. Jan. 12, 1878, Aargau v. Zurich, Entscheidungen des Schweizerischen Bundesgerichtes aus dem Jahre 1878, Amtliche Sammlung, IV, 34, discussed by Dr.Schindler, Dietrich, in “The Administration of Justice in the Swiss Federal Court in Intercantonal Disputes”, Amer. Jour. of Internal. Law, Vol. 15, pp. 149, 160, and 170 (1921)Google Scholar.
In Germany, the Staatsgerichtshof adjudicated a dispute between Württemberg and Prussia and Baden concerning the flow of the Danube River from Baden to the other two states of the German Federation. June 18, 1927, Württemberg and Prussia v. Baden, Entscheidungen des Reichsgerichts in Zivilsachen, CXVI, Appendix, pp. 18–45, discussed in McNair, Arnold D. and Lauterpacht, H. (eds.), Annual Digest of Public International Law Cases, 1927–1928 (London, 1931), pp. 128–133Google Scholar.