Connecticut vs. Massachusetts records

The Connecticut v. Massachusetts water diversion case was initiated by the state of Connecticut in order to protect the flow of water in the Connecticut River from being diminished by the Commonwealth of Massachusetts. The case was argued before the United States Supreme Court from 1927-1931. The following historical note is split into three sections: Massachusetts, Connecticut, and Connecticut vs. Massachusetts.

Massachusetts

The General Court of the Commonwealth of Massachusetts (hereafter referred to as legislature) from 1870 to 1890 required the State Board of Health to investigate water supplies and annually report findings detailing available water supplies, sewage amounts, and sewage treatment. In 1895, the Massachusetts State Board of Health submitted a report to the legislature recommending future water supplies for metropolitan Boston come first from the Ware River and then the Swift River. The recommendation led three decades later to the United States Supreme Court case over the use of water from the tributaries and watershed of the Connecticut River in Massachusetts.

In January of 1919 the Massachusetts State Department of Health asked the legislature for $50,000 to study the problem of obtaining an adequate water supply for eastern Massachusetts. The Department of Health expected the study of water supplies to take two years. The legislature passed a resolve in June of 1919 instructing the Department of Health and Metropolitan Water and Sewerage Board to investigate the water supply needs, resources, and use of great ponds. L.D.G. Bentley, a reporter for the Boston Daily Globe, said, "The passage of the resolve was based largely on the fact that municipalities have been short-sighted in obtaining sources of water supply."¹ In August of 1919 the Department of Health and Metropolitan Water and Sewerage Board formed a joint board to begin investigating the water supply problem in eastern Massachusetts under the direction of Dr. Henry P. Walcott and chief engineer X. H. Goodnough.

The joint board in January of 1922 submitted their findings and recommendations to the legislature. The board found that water supplies would be urgently needed in a ten mile radius around Boston by 1930 if population growth continued at pre-World War I levels. The findings also suggested that more towns would join the Metropolitan District as there need for more water occurred. The board recommended to the legislature a $60 million dollar project. The first part of the project would be to divert the flood waters of the Ware River at Coldbrook to the Wachusett Reservoir by a 12 mile tunnel at a cost of $12 million dollars. The second part, known as the Swift River project, would construct a reservoir off the Swift River which would be linked to the Wachusett Reservoir providing a stable water supply for the metropolitan district. The planned reservoir, however, would result in the destruction of the towns of Enfield, Greenwich, Prescott, and Dana.

The Legislative Committee on Water Supply on May 3, 1922 held a public meeting in Springfield, Massachusetts to discuss the proposed project and receive comments from the public. The committee on May 18 held a hearing with Department of Health Commissioner Eugene R. Kelley to discuss the proposed project. The committee issued its majority and minority reports on May 10, 1924. The majority recommended the legislature act immediately to appoint a commission of three members to update the "Goodnough plan," make a report to the next legislature, and oversee the entire construction of the water project. The minority agreed with the majority on a commission but disagreed on the charge of the commission instead arguing the state should be held to no single plan, should study all available supplies, and at least one commissioner should be from Hampden or Hampshire County.² The Massachusetts legislature in late May of 1924 approved a bill to form a three member Special Water Supply Investigating Commission, also known as the "Gow Commission," to again investigate the water supply needs and resources available for eastern Massachusetts. The members of the commission were Charles R. Gow (chairman), President of the Senate Wellington Wells, and Speaker of the House John C. Hull. The commission's report was due to legislature on December 1, 1925.

The town of Ware, Massachusetts along with other Ware and Swift River valley towns began organizing opposition to the "Goodnough plan" in May of 1924.³ Water supplies in eastern Massachusetts throughout 1925 remained at record lows. In late 1925 the towns of Ware, Barre, Oakham, Hardwick, Palmer, Ludlow, and Chicopee held a meeting of selectman to discuss the Ware River project.⁴

The Special Water Supply Investigating Commission on December 1, 1925 submitted a 60 page report to the legislature. The commission reported on the water system, water supply, and potential water system development. The overall recommendation of the commission was for the creation of a special construction commission "with authority to improve and increase the present water supply of the Metropolitan District and the city of Worcester."⁵ The commission requested an immediate appropriation from the legislature of $27.5 million dollars and estimated the total project would cost $71.2 million dollars to develop and construct the water supply system.⁶

Representative Roland D. Sawyer of Ware on December 2, 1925 publicly denounced the "Gow Commissions" findings and vowed to fight the adoption of the report in the legislature. Sawyer believed the use of filtration could build up an adequate supply of water until 1940. Other communities throughout Massachusetts organized committees to oppose the report's recommendations and the proposed actions by the Metropolitan District Commission. Hearings on the commissions report continued throughout early 1926 before the Legislative Committee on Metropolitan Affairs and Water Supply. The committee in early April "reported a resolve calling for an investigation by the State Department of Public Health into a water supply source for the cities and towns of Essex County and adjacent portions of Middlesex County." During the same time Massachusetts Governor Alvan T. Fuller began holding conferences with water supply experts to determine the best water supply plan.⁷ Caleb Mills Saville, personal representative of Connecticut Governor John H. Trumbull, appeared before the Legislative Committees on Metropolitan Affairs and Water Supply, to protest the extension of the Metropolitan Water District as being "detrimental to citizens, industries and corporations of Connecticut…" and "one result of the extension...would be the damage of the development of power on the Connecticut River at Windsor Locks and Enfield Rapids."⁸

Throughout April and May 1926 the Legislative Committees on Water Supply and Metropolitan Affairs, Senate Committee on Ways and Means, House Committee on Ways and Means, and Joint Legislative Committee on Ways and Means held public hearings; reviewed plans; and voted, reported, and referred bills to other committees or the legislature for action. The committees reviewed three different plans: the "Booth plan," the "Goodnough plan," and the "Gow Commission plan." The "Booth plan" provided for "the use of the waters of the North Ware River by constructing a dam at Barre Falls on that river and several necessary dikes so as to build a large storage reservoir." On April 27, 1926 the "Booth plan" passed the Legislative Committees on Water Supply and Metropolitan Affairs over the "Goodnough plan." The "Gow plan" proposed constructing a reservoir on the Ware River, using the Assabet River, and "impounding" part of the Ipswich River. The total water available a day of this plan would roughly amount to 142 million gallons. On the other hand, the Joint Board of 1919-1923 proposed a plan created by State Department of Public Health engineer X. H. Goodnough. The "Goodnough Plan" proposed putting a dam 3 miles south of Enfield, Massachusetts on the Swift River along with a dike in the valley of Beaver Brook. The dam and dike on the Swift River would create a roughly 40 square mile reservoir with a 400 billion gallon storage capacity. The "Goodnough Plan" could provide about 200 million gallons of available water each day. The legislature at the end of May 1926 passed the "Goodnough plan" into law as Chapter 375, "An Act Making Additional Provision for the Water Supply Needs of the Metropolitan Water District and Other Communities which now or hereafter may Require Water Therefrom, and of the City of Worcester." The act established the Metropolitan District Water Supply Commission which was tasked with "extending and increasing the water supply of the metropolitan water system…" ⁹ The Commonwealth of Massachusetts four years after the Joint Board report and thirty one years after the first comprehensive water supply report conducted by the State Board of Health led to the law on expanding water supplies in eastern Massachusetts.

The engineers and surveyors in early November 1926 started planning the tunnel to connect the Wachusett Reservoir to the Ware River at Coldbrook. The twelve mile tunnel project and connection to the Swift River valley according to engineers would take at least five years to complete.¹⁰ In early January 1927 the Metropolitan District Water Supply Commission requested $50 million dollars to begin work on the diversion of water from Swift River and Beaver Brook, a tributary of the Ware River, into a reservoir connected by aqueducts and tunnels to the Wachusett Reservoir. On February 8 the Joint Waters Supply Committee started hearings on the plans to divert water from the Swift River and Beaver Brook.¹¹ The tunnel from the Wachusett Reservoir to the Ware River at Coldbrook was expected to cost $9 million dollars or more and was bid out on November 19. The Swift River diversion was passed into law in 1927 as Chapter 321, "An Act Making Additional Provision for the Water Supply Needs of the Metropolitan Water District and for Communities which now or hereafter may Require Water Therefrom, by the Development of an Adequate Future Water Supply from the Swift River."¹²

Connecticut

The Connecticut Chamber of Commerce in early 1924 authorized its executive secretary, George B. Chandler, to represent them at a conference on the water diversion project in Springfield, Massachusetts. Chandler studied the proposals and reported to the chamber that the project would be detrimental to the state. The chamber's annual meeting of members and delegates on May 22, 1924 passed a resolution reaffirming their opposition to diversion of water from the Connecticut River. The chamber resolved to bring the water diversion project to the attention of Governor Charles A. Templeton and asked him to seek an opinion from the Attorney General. In response Governor Templeton on May 29 requested an oral opinion from the Attorney General Frank E. Healy on diversion of water from the Connecticut River.¹³ Healy, in a February 24, 1926 opinion to Governor John H. Trumbull, summarized his oral opinion to Governor Templeton. In the written opinion Healy said, "At that time it appeared that the cost of the project would be so large as to be prohibitive and lead to abandonment."

The state of Connecticut took no action through most of 1925 on the proposed water diversion projects of Massachusetts. On December 1, 1925 the Massachusetts Special Water Supply Investigating Commission submitted a 60 page report to the Massachusetts legislature. The report recommended diverting the Ware River and then potentially the Swift River. The report was met with opposition both in Connecticut and western Massachusetts. Governor Trumbull on December 23 requested an official written opinion from Attorney General Healy regarding whether the proposed water diversion project would diminish the natural flow of the Connecticut River. Healy issued his opinion on February 24, 1926. He recommended, "Securing the services of an expert engineer and have that fact definitely determined."¹⁴ The attorney general's opinion then explained Governor Trumbull's statutory authority, under Section 172, to "institute legal proceedings…to prevent the diminution of flow of water from any other state into watercourses in this state…"¹⁵ Governor Trumbull on March 12 requested Caleb Mills Saville, a hydraulic engineer for Hartford, to investigate and report on the water diversion projects possible effects to natural stream flow in the Connecticut River.

The preliminary report from Saville in late March 1926 convinced Governor Trumbull to request an appearance of his representative before the Massachusetts Senate Committee on Water Supply. The request was granted and Saville appeared in front of the committee on April 8. Saville submitted his report to Governor Trumbull on April 12 concerning his appearance before the committee, briefs he left with the committee and legislators, and clippings from Boston newspapers which covered the committee proceedings.¹⁶ Connecticut officials spent the rest of 1926 waiting first to see what Massachusetts would do and second continued discussions with Massachusetts officials towards an agreeable diversion plan acceptable to both states.

The Commonwealth of Massachusetts Metropolitan District Water Supply Commission submitted on November 30, 1927 a formal permit application for diversion of waters to the United States War Department.¹⁷¹⁸ Counsel for Connecticut was notified on December 10 by the War Department District Engineers Office in Boston that requests for permits to divert water were filed by Massachusetts with the War Department but copies were not available. On December 16, Connecticut requested the Secretary of War provide copies of Massachusetts permit applications and convene a hearing before any permits would be issued to the Metropolitan District Water Supply Commission. The City of Hartford on December 19 submitted a request to the Secretary of War for copies of Massachusetts permit applications and also requested a hearing concerning the diversion of water from the Ware River and Swift River.¹⁹

On December 21, Benedict M. Holden and Ernest L. Averill received a telephone call from the War Department to appear December 22 in Washington, D.C. at a conference with representatives from Massachusetts concerning water diversion permits. The counsel for Connecticut was able to temporarily stop the War Department from issuing permits to Massachusetts for water diversion. Counsel for Connecticut was asked to appear again on December 30 to present their case before officials of the War Department. The reason the War Department asked counsel to come back was Massachusetts petitioners had been in Washington, D.C. for the two previous days presenting their case for permits to divert water. Connecticut Attorney General Benjamin W. Alling, along with special assistant attorney general Benedict M. Holden, while in Washington, D.C. filed a "Motion for Leave to File Bill in Equity Bill of Complaint" against the Commonwealth of Massachusetts with the United States Supreme Court. The motion asked the court to impose an injunction against the Massachusetts water diversion project. The case was scheduled for hearing on the January 1928 docket.

The two sides held a conference on December 27, 1927 at the office of Massachusetts Governor Alvan T. Fuller. The members in attendance included: Benedict M Holden (special assistant attorney general of Connecticut), Governor Alvan T. Fuller, Davis B. Keniston (Chairman of Metropolitan District Commission), Commissioner Charles M. Davenport (member of commission), and attorney general Arthur K. Reading of Massachusetts. The group worked through concerns, both sides shared information, and agreed to hold another conference.^{20 21} In January of 1928 Connecticut filed a brief with the War Department presenting their arguments against issuing a permit to Massachusetts for diversion of water.²²

Connecticut vs. Massachusetts

The Connecticut vs. Massachusetts case began on December 22, 1927 with Attorney General Alling filing a "Motion for Leave to File Bill in Equity Bill of Complaint" before the United States Supreme Court. In the complaint Connecticut requested the court grant them an injunction and a writ of subpoena be issued to defendants to answer the complaint.²³ The Supreme Court on January 9, 1928 granted Connecticut's motion for leave to file the bill of complaint and required the Commonwealth of Massachusetts to answer the complaint by March 5.²⁴ Governor Fuller of Massachusetts on January 26 received formal notification from the Supreme Court "that injunction proceedings have been instituted in that court by the state of Connecticut against the commonwealth of Massachusetts to bar the plan to take water from the Ware and Swift rivers for the water supply of Metropolitan Boston."²⁵ The press at the end of January 1928 was reporting that Connecticut and Massachusetts were meeting privately to settle the water diversion issue. Benedict Holden, special counsel, disagreed with the statements of a compromise on the case being reached. Holden said, "Connecticut is holding out no olive branch to Massachusetts and will not consider settlement in the river diversion project until Connecticut, Springfield, Holyoke, and other Connecticut river towns are taken into consideration." He told the press that no suggestion of compromise had been made to him and he believed the rumor was started by a private company in order to benefit them.²⁶

A public hearing, organized by officials and engineers from the War Department, was held in Springfield, Massachusetts on February 9, 1928. The main issue at the public hearing was the amount of water to be diverted from the Ware River and the impact any lowering of the river could have on Connecticut industries.²⁷ The hearing also brought to light Massachusetts intention to not only divert water from the Ware River but also the Swift River in one project. Both counsel for Connecticut and Massachusetts refused to discuss technical data which might be used in the Supreme Court case.²⁸

On March 5, Massachusetts answered Connecticut's charge, "Denying that the proposed diversion would affect the navigation of the Connecticut River, Massachusetts insisted that it would not interfere with any of the rights, interests or immunities of Connecticut or of the inhabitants of that state."²⁹ Massachusetts asked the court to dismiss the case and order Connecticut to pay court costs and damages for delays on the water project. Counsel for Massachusetts argued in the brief, "An emergency exists in Boston…and unless water is supplied in the metropolitan area a grave and serious danger exists."³⁰

Secretary of War Dwight Davis on March 15, 1928 announced the War Department would not interfere with the Massachusetts Metropolitan District Water Supply Commissions plan to divert flood waters of the Ware River exceeding 85 million gallons per day from October 15 to June 15 of each year. The War Department would not object to the water diversion but did not issue a permit opting instead to wait for the decision of the court. The War Department ordered further study on diverting water from the Swift River before starting proceedings to issue Massachusetts a permit for the project.^{31 32}

The Clerk of the Supreme Court, Charles Elmore Cropley, on March 16, 1928 told the press a special master would be appointed to hold hearings, take testimony, and report findings of the hearings to the court. However, the Supreme Court did not move to appoint a special master until late December 1929. In early April 1928 the Massachusetts Metropolitan District Water Supply Commission preceded work on the Swift River reservoir by serving writs of ejection on home owners in the Swift River valley. Deputy Attorney General Ernest L. Averill at the end of April 1928 attended oral arguments before the Supreme Court on the Chicago Sanitary District case. Averill attended the arguments because the case was similar to Connecticut's water case pending against Massachusetts. On October 18, 1928 representatives from Massachusetts and the War Department had a meeting in which nothing was concluded on additional water diversion projects.³³

The Supreme Court on January 14, 1929 found in favor of the Chicago Sanitary District's diversion from Lake Michigan to flush sewage into the Chicago River. The court found the War Department permit was lawfully authorized, that Chicago must reduce its drawdown, and special master Charles E. Hughes was appointed to take testimony on how much reduction could safely be done in order to flush the Chicago sewage canal.³⁴ The outcome of the case gave counsel for Connecticut hope but also new issues to consider in their own case.

The War Department in January and February 1929 issued a report and recommendations on the maximum amount of water Massachusetts could divert from the Swift River but again waited to issue permits.³⁵ On November 25, Connecticut introduced two motions. The first motion was to dismiss the answer filed by Massachusetts and the second motion was to strike out certain parts of the Massachusetts answer. Massachusetts on the same day introduced a motion to amend its answer and a motion for the court to appoint a special master.

The Supreme Court from March 5, 1928 to December 2, 1929 took no action on the case. The court ruled on December 2, 1929, "The motion for the appointment of a special master in this case is granted; and Charles W. Bunn, Esq., of St. Paul, Minnesota, is appointed special master in this case…"³⁶ The Connecticut State Board of Finance and Control on December 5 voted against accepting a proposed compromise offered by Massachusetts. The compromise put forward was Connecticut would agree to the diversions of the Ware River and Swift River and Massachusetts would abide by War Department decisions on the amount of water that could be diverted without effecting navigation.³⁷ The Supreme Court postponed hearing oral arguments, at the request of both parties, until January 20, 1930.³⁸

The Supreme Court on January 20, 1930 ruled against Connecticut's motions to strike out Massachusetts answer and strike out certain parts of Massachusetts answer. The court ruled the special master would hold hearings on the case. Connecticut was ordered by the court to file an answer to Massachusetts answer within one week from the hearing.^{38 39} The counsel for Connecticut filed its reply to Massachusetts amended answer with the court on January 27.

On February 18, 1930 hearings started before special master Charles W. Bunn at the Five-Cents Savings Bank building in Boston, Massachusetts. Connecticut argued the diversion of the rivers would affect the flow of the Connecticut River and the underway diversion project if not challenged by Connecticut might lead Massachusetts to take water using established precedent. The special master on the opening day of testimony limited the scope of the hearing to the "facts pertaining to the Ware and Swift river projects."⁴⁰ The first witness called by Connecticut at the hearing was Chief Engineer Frank E. Winsor of the Metropolitan District Water Supply Commission.⁴¹ The beginning of the hearing brought to light the inability to get data from Massachusetts that Connecticut claimed existed. The special master suggested rival engineers work together to find the data Connecticut claimed existed in some state departments of Massachusetts. The hearing was recessed until February 25 in order for engineers to find data requested by counsel for Connecticut.⁴² Rival engineers over the recess discovered the data in several state departments of Massachusetts on which legislation was based for diversion of the Ware River and Swift River.⁴³ The hearing then went on to take testimony from experts on pollution.

The hearing was moved from Boston to the County Building in Hartford on March 3, 1930. Local farmers, with land next to the river, were called by counsel for Connecticut to testify before the special master on how flooding from the Connecticut River fertilized their crop land. James A. Foord, from the Massachusetts Agricultural College at Amherst, assisted Massachusetts counsel during cross-examination of the farmers.⁴⁴ On March 5, counsel for Connecticut presented a new argument at the hearing suggesting that Boston get its water supply from the Merrimac River instead of the Connecticut River watershed. Massachusetts special attorney Bentley W. Warren in response submitted a "formal objection to the introduction of evidence bearing on the available supply of water other than that contemplated by the metropolitan district." Warren also filed a motion asking that the case be dismissed without prejudice on the grounds Connecticut failed to show substantial damages that would be caused by diversion of water from the Connecticut River and "failed to sustain the burden of proof." The special master noted the objection and felt the motion would be appropriate only after all evidence was heard in the case.⁴⁵ The examination of witnesses and arguments before the special master concluded on April 24, 1930 in St. Paul, Minnesota.⁴⁶

The special master in his report recommended to the Supreme Court that Connecticut's bill of complaint be dismissed and "the decree contain a provision for the protection of the owner of the [King's Island] dam and power at that place."⁴⁷ The Supreme Court on May 26, 1930 ordered the special master's report filed with the court and the parties were required to file exceptions and objections to the report on or before October 6, 1930.⁴⁸ Connecticut submitted seventy five exceptions to the special master's report. Massachusetts did not object to the report.

The Supreme Court on January 5-6, 1931 heard oral arguments on the exceptions to the special master's report. On February 24 the court ruled against granting Connecticut an injunction prohibiting Massachusetts from diverting water and dismissed Connecticut's bill of complaint. The court ruled Connecticut retained the right to bring legal action against Massachusetts at any time if water increases appeared to occur outside legislation passed by Massachusetts and the authority of the War Department. The court also ruled that each side pay its own legal costs and one half the expenses and compensation of the special master. Counsel for Massachusetts and Connecticut was ordered by the court to prepare a form of decree in agreement with the decision. The Supreme Court on March 23, 1931 issued the decree deciding the case in Massachusetts favor.

The Connecticut vs. Massachusetts case cost the State of Connecticut over $300,000 not including half the costs of the special master. Attorney General Benjamin W. Alling, in the Sixteenth Biennial Report of the Attorney General, on the case said, "If the State of Connecticut had permitted this first taking to occur without a contest, a precedent would have been established for future takings of an unlimited amount. The action by our State has preserved our rights and limited the diversion of water to portions of the flood flows of the Ware and Swift Rivers only, with the right preserved to interfere with additional efforts to increase this amount to the prejudice of our citizens."⁴⁹ The Swift River and Ware River water diversion project was completed on August 14, 1939 with the first water flowing into the Quabbin Reservoir.⁵⁰