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Village of Riverwoods v. Dept. of Trans.

OPINION FILED OCTOBER 2, 1979.

VILLAGE OF RIVERWOODS ET AL., APPELLANTS,

v.

DEPARTMENT OF TRANSPORTATION ET AL., APPELLEES.



Appeal from the Circuit Court of Lake County, the Hon. Lloyd A. Van Deusen, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

The appellants here are 11 of some 195 municipalities and other governmental entities in northeastern Illinois which applied to the Department of Transportation for initial allocations of water to be diverted from Lake Michigan under "An Act in relation to the regulation and maintenance of the levels in Lake Michigan * * *" (Ill. Rev. Stat. 1977, ch. 19, pars. 119 through 120.11) (the Act). Evidentiary hearings were held before the Department during 1975 and 1976 in a proceeding captioned "In the Matter of Lake Michigan Water Allocation" that resulted in Order LMO 77-1, issued April 15, 1977, in which the Department awarded each appellant less than the full amount of water requested by it. After considering petitions for rehearing, the Department altered some allocations, but Order LMO 77-1 was adhered to in all respects material to this appeal by Order LMO 77-2, which was issued September 26, 1977.

Pursuant to section 12 of the Act (Ill. Rev. Stat. 1977, ch. 19, par. 120.10), complaints for administrative review were filed in the circuit court of Lake County by the appellants and by other applicants. The circuit court set aside a portion of Order LMO 77-2 which reduced the allotment to the village of Glencoe below the amount which had previously been allocated by LMO 77-1, but in all other respects the court affirmed the orders of the Department. An appeal to this court was allowed under Rule 302(b). 58 Ill.2d R. 302(b).

The appellants here are the villages of Riverwoods, Kenilworth, Glencoe, Winnetka, Lincolnwood, Maywood, Bridgeview and Lincolnshire and the cities of Evanston, North Chicago, and Highland Park. While these appeals were pending the city of Evanston advised us that the Department had modified its order so as to increase Evanston's allocation, and that Evanston therefore would not participate further in this appeal. The city of Rolling Meadows and the village of Downers Grove urge affirmance of the judgment below, as does the Des Plaines-Mount Prospect-Arlington Heights-Palatine Water Commission and its member municipalities.

The matter before us had its immediate origin in the decree entered by the Supreme Court of the United States in Wisconsin v. Illinois (1967), 388 U.S. 426, 18 L.Ed.2d 1290, 87 S.Ct. 1774, which enjoined the State of Illinois and its municipalities and political subdivisions from diverting water into the Illinois waterway from Lake Michigan, or its watershed, in excess of an annual average of 3,200 cubic feet per second (abbreviated hereafter as cfs). The diversion prohibited by the decree was broadly defined to include diversion "by way of domestic pumpage from the lake the sewage effluent derived from which reaches the Illinois waterway, or by way of storm runoff from the Lake Michigan watershed which is diverted into the Sanitary and Ship Canal, or by way of direct diversion from the Lake into the canal * * *."

The decree also provided that the total amount of water which might be diverted "may be apportioned by the State of Illinois among its municipalities, political subdivisions, agencies, and instrumentalities for domestic use or for direct diversion into the Sanitary and Ship Canal to maintain it in a reasonably satisfactory sanitary condition, in such manner and amounts and by and through such instrumentalities as the State may deem proper, subject to any regulations imposed by Congress in the interests of navigation or pollution control." 388 U.S. 426, 427-28, 18 L.Ed.2d 1290, 1291, 87 S.Ct. 1774, 1775.

Federal limitations on the amount of water which Illinois could remove from Lake Michigan had existed prior to 1967. See Sanitary District v. United States (1925), 266 U.S. 405, 69 L.Ed. 352, 45 S.Ct. 176; Wisconsin v. Illinois (1929), 278 U.S. 367, 73 L.Ed. 426, 49 S.Ct. 163; Wisconsin v. Illinois (1930), 281 U.S. 179, 74 L.Ed. 799, 50 S.Ct. 266; Wisconsin v. Illinois (1930), 281 U.S. 696, 74 L.Ed. 1123, 50 S.Ct. 331; Feldman, The Lake Diversion Case — The End of a Cycle, 49 Chi. Bar Rec. 270 (1968).

State legislation relating to the level of Lake Michigan was enacted as early as 1929 in an act providing for cooperation with the Federal government in the maintenance of the level of the lake (1929 Ill. Laws 101). That legislation presumably came in response to the decision of the United States Supreme Court in the Sanitary District case mentioned above. So far as we are advised, however, no provision was made for the apportionment of the amount of water to which the State was entitled until an amendment to the act made in 1969 (Pub. Act 76-1844, 1969 Ill. Laws 4071). A further amendment effective in 1972 (Pub. Act 77-163, 1971 Ill. Laws 333) designated the Department as the agency to administer the apportionment.

In its memorandum opinion the circuit court notes that in 1972, prior to the present allocation hearings, the Department had entered an allocation order which had been set aside by the court because of procedural defects. No reference to that earlier proceeding or its effect, if any, on the case now before us is made by the parties, and we do not consider it here.

We turn first to a contention made by several municipalities which abut on Lake Michigan that the Act violates the due process clauses of the Federal and Illinois constitutions, since it accords no priority to riparian and prescriptive rights which they allegedly possess as to water from Lake Michigan.

We entertain some question whether common law riparian or prescriptive rights include a right to the diversion, as distinguished from the use, of the waters of Lake Michigan, as that term is defined in the decree in Wisconsin v. Illinois (1967), 388 U.S. 426, 18 L.Ed.2d 1290, 87 S.Ct. 1774, or whether such rights may override the paramount interest of the State. The decree itself contains no language requiring Illinois to grant a preferential position to governmental entities claiming such rights. We think it unnecessary to examine further the extent of the rights asserted by these appellants, however, for our decisions in Supervisors v. Village of Rainbow Gardens (1958), 14 Ill.2d 504, 507-08, and Meador v. City of Salem (1972), 51 Ill.2d 572, 578, establish that a municipal corporation is not entitled to the protection of the due process clause against the State.

The cities of Highland Park and North Chicago and the villages of Riverwoods and Lincolnshire challenge the Department's orders on the ground that the Act fails to provide adequate standards to guide the Department, and that the General Assembly has thus made an improper delegation of its legislative power.

The relevant portion of the Act is section 5 (Ill. Rev. Stat. 1977, ch. 19, par. 120.3), ...


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