Sections 9 and 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. Sections 401, 403) grants control over obstructions to navigable waters to the Corps of Engineers. Section 9 defines the requirements for approval to construct dams, dikes, bridges, or causeways in navigable water. Structures built wholly within a state must be approved by state legislatures, while structures built in waterways that are navigable in more than one state must have congressional approval. In both instances, the Corps of Engineers must approve the project. [Currently, administration of Section 9 has been delegated to the Coast Guard, Department of Homeland Security.] |
Section 10 of the 1899 Act gave the Corps exclusive authority to approve construction of smaller structures (wharves, booms, and bulkheads), as well as approve dredging and filling operations. This section also bans obstructions that impede the navigation capacity of any waters of the U.S., unless there is affirmative authorization by Congress. [Currently continues to be administered by the Corps of Engineers, Department of Defense.] Together, Sections 9 and 10 attempted to protect a strong federal interest in open commerce between the states, while accommodating local interests.

Section 13 of the 1899 Act (commonly called “The Refuse Act”; 33 U.S.C. Section 407 (1976)) prohibits the discharge of “any refuse matter of any kind or description” into navigable waters, and gave the Corps of Engineers the authority to regulate hazards resulting from effluents. In reality though, as seen in early 1900’s court decisions, the Corps was not given the authority to deal with polluters, and pollution generally became considered a state or local problem, while any threat to navigation continued to directly involve the Corps.
Then in 1970, the Corps of Engineers, Congress, and the Nixon administration roughly came to agreement at the same time to prohibit water pollution under Section 13, and a formal section 13 permit program was established by President Nixon. The Corps almost simultaneously put into effect the permit program by formal public announcement. Yet, in Kalur v. Resor, 335 F. Supp.1 (D.D.C. 1971), the section 13 permit program was found to violate the terms of the National Environmental Policy Act of 1969. Therefore, Congress subsequently passed the 1972 Amendments to the Federal Water Pollution Control Act* (codified at 33 U.S.C. Section 1342 (1976)) which gave the Environmental Protection Agency sole authority to issue water pollution discharge permits, and eventually led to the establishment of the National Pollutant Discharge Elimination System (NPDES) permit program.
Section 13 of the 1899 Act remained viable for criminal enforcement, but only when no permit was issued for discharge. [Currently why the EPA is considered the “enforcement arm” for the Corps of Engineers permit program.]
But we haven’t yet made it to the Clean Water Act….! More historical developments to come in the next posting!
-JMB
*A modified title of the 1899 Act.
Sources:
http://scholarship.law.duke.edu/ Duke Law Journal, Vol. 1980:170-186+
http://www.fws.gov/laws/lawsdigest/
http://www.usace.army.mil
Then in 1970, the Corps of Engineers, Congress, and the Nixon administration roughly came to agreement at the same time to prohibit water pollution under Section 13, and a formal section 13 permit program was established by President Nixon. The Corps almost simultaneously put into effect the permit program by formal public announcement. Yet, in Kalur v. Resor, 335 F. Supp.1 (D.D.C. 1971), the section 13 permit program was found to violate the terms of the National Environmental Policy Act of 1969. Therefore, Congress subsequently passed the 1972 Amendments to the Federal Water Pollution Control Act* (codified at 33 U.S.C. Section 1342 (1976)) which gave the Environmental Protection Agency sole authority to issue water pollution discharge permits, and eventually led to the establishment of the National Pollutant Discharge Elimination System (NPDES) permit program.
Section 13 of the 1899 Act remained viable for criminal enforcement, but only when no permit was issued for discharge. [Currently why the EPA is considered the “enforcement arm” for the Corps of Engineers permit program.]
But we haven’t yet made it to the Clean Water Act….! More historical developments to come in the next posting!
-JMB
*A modified title of the 1899 Act.
Sources:
http://scholarship.law.duke.edu/ Duke Law Journal, Vol. 1980:170-186+
http://www.fws.gov/laws/lawsdigest/
http://www.usace.army.mil