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Show GREAT LAKES LITIGATION 651 He then proceeds: "There is nothing in any of the acts of Congress upon which the defendants rely specifying any particular quantity of water which could be diverted and it could hardly be considered a reasonable con- tention that the acts of Congress justified any diversion of water from Lake Michigan that the State of Illinois and the Sanitary District might see fit to make. It is manifest that it was the view of the War Department that Congress had not acted directly and whatever the Department did was subject to such action as Congress might take." He continues: "This understanding that Congress has not yet acted directly so as to authorize the diversion in question has continued. It was in this view that the United States, prosecuted its suit to decree in this Court to enjoin the defendants from taking more water from Lake Michigan than the Secretary of War had allowed." In this conclusion, which the Court confirms, we are therefore remitted solely to the effect and operation of the permit of 1925 as authority for the maintenance of the diversion. The normal power of the Secretary of War under Section 10 of the Act of March 3, 1899, is to maintain the navigable capacity of Lake Michigan and not to restrict it or destroy it by diversions. This is what the Secretaries of War and the Chiefs of Engineers were trying to do in the interval between 1896 and 1907 and 1913 when the applica- tions for 10,000 cubic feet a second were denied by the successive Secre- taries and in 1908 a suit was brought by the United States to enjoin a flow beyond 4,167 cubic feet a second. Then pending the suit, the Sanitary District disobeyed the restriction of the Secretary of War's permit 'and increased the diversion to 8,500 cubic feet in order to dis- pose of the sewage of that District. Had an injunction then issued and been enforced, the Port of Chicago almost immediately would have become practically unusable because of the deposit of sewage without a sufficient flow of water through the Canal to dilute the sewage and carry it away. In the nature of things it was not practicable to stop the deposit without substituting some other means of disposal. This situation gave rise to an exigency which the Secretary, in the interest of navigation and its protection, met by issuing a temporary permit intended to sanction for the time being a sufficient diversion to avoid interference with navigation in the Port of Chicago. See New York v. New Jersey, 256 U.S. 296, 307, 308. The elimination and prevention of this interference was the sole justification for expanding the prior permit, the limitations of which had been disregarded by the Sanitary District. Merely to aid the District in disposing of its sewage was not a justification, considering the limited scope of the Secretary's author- ity. He could not make mere local sanitation a basis for a continuing diversion. Accordingly he made the permit of March 3, 1925, both temporary and conditional-temporary in that it was limited in dura- tion and revocable at will, and conditional in that it was made to de- pend on the adoption and carrying out by the District of other plans for disposing of the sewage. It will be perceived that the interference which was the basis of the Secretary's permit, and which the latter was intended to eliminate, resulted directly from the failure of the Sanitary District to take care of ite sewage in some way other than by promoting or continuing the existing diversion. It may be that some flow from the Lake is |