Wetland Regulations 101: Past

Rivers and Harbors Act of 1899, Sections 9, 10 & 13 – Historical Legal Evolution of Environmental Law...

12/11/2015

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.]

Dredger

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

0 Comments

Rivers and Harbors Act of 1899 - An 1800’s View of Federal Commerce Power...

12/7/2015

1 Comment

To appreciate the federal control over internal waters that culminated in the Rivers and Harbors Act of 1899, one must look further back to the Rivers and Harbor Act of 1890 and previous law cases.

In 1824, Gibbons v. Odgen placed control over navigation squarely within Congress’ commerce power: “All America understands, and has

uniformly understood, the word ‘commerce,” to comprehend navigation.”(22 U.S. (9 Wheat.) 1 (1824)). Five years later, in Wilson v. Black Bird Creek March Co., the Supreme Court recognized that a legitimate local health concern (excluding water from a marsh via a structure, and probably improving the local inhabitants' health) could justify a state’s regulation of commerce even with a strong federal interest in navigation (27 U.S. (2 Pet.) 245 (1829)).

After 1835, when there was rapid growth of railroads and steamboat travel on inland rivers and lakes, the problem of manmade obstructions to navigation increased. The federal government had begun a program of river improvements with an emphasis on locks, canals, and dams. The improvements were frequently rendered useless by the construction of railroad trestles, private dams, and floating booms. These obstructions were often authorized by state legislative acts. This conflict was not resolvable by the court system, and led to insistence by the Supreme Court that there must be a direct statute of the U.S. in order to bring within the scope of its laws the obstructions in navigable streams. In response to the courts’ requirement of congressional action to override state obstructions of navigable waters*, Congress began to pass a series of statutes asserting its power over waterways. And, along came the Rivers and Harbors Act of 1890.

The Rivers & Harbors Act of 1890 stated in broad, sweeping language that “the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the U.S. has jurisdiction, is hereby prohibited.” The 1890 Act also contained other elements: criminal penalties for refusing to alter bridges, prohibitions on dumping refuse, and approval requirements for the construction of structures. The 1890 Act gave all approval power to the Secretary of War. What was left unclear from the 1890 Act was the state legislative approval powers for intrastate structures. Another concern was the delegation of the approval authority to the Secretary of War – with the view that this was an unconstitutional delegation of legislative functions. In response, Congress asked the Secretary of War to codify (turn into law) the existing law governing obstructions to navigable waterways. The proposed codification was sent to Congress in February of 1897.

Lying dormant until 1899, this codification was hurriedly attached as an amendment to the current year’s Rivers and Harbors Appropriation bill. Claiming that it incorporated no significant changes of earlier laws, its supporters were successful in convincing the Senate to adopt the amendments without having heard them read aloud. Yet, the 1899 Act did not merely codify the existing 1890 Act; it redistributed administrative and legislative authority over obstructions to navigation.

The three major changes from the 1890 Act:
1. The 1899 Act defined the Corps power according to the type of obstruction involved.
2. The 1899 Act (Section 9) required congressional approval for dikes, dams, bridges, and causeways.
3. The 1899 Act expanded the power of the state legislative approval power from bridges over intrastate waterways to include dams, dikes, and causeways as well.

Essentially, the 1899 Act narrowed the broad, exclusive power of the Corps of Engineers by making the approval for certain structures much more difficult to obtain by requiring congressional authorization. These changes could put to rest the concerns for unconstitutionally delegating legislative power and attempted to accommodate the political forces and legal theories that weakened the 1890 Act.

A continued discussion about Sections 9, 10 & 13 of the Rivers & Harbors Act of 1899 coming in the next post – Historical Legal Evolution of Environmental Law.

-JMB

Sources:
http://scholarship.law.duke.edu/ Duke Law Journal, Vol. 1980:170-186+
http://www.fws.gov/laws/lawsdigest/
http://www.usace.army.mil/About/History/

*The details of definitions and determined intent are common themes in the legal world. The judicial interpretation of the term, “navigability,” was incorporated by Congress into legislation, and been shaped for over 150 years by Supreme Court decisions. The test for navigable waters used to be whether the waterway was tidal (had “ebb and flow”) as influenced by the courts in Great Britain as far back as 1783. In 1851, the Supreme Court rejected the practice of relying on British notions of “ebb and flow” to define navigability and favored a definition of “navigability in fact” in a case concerning a collision on Lake Ontario. Therefore, the test became whether the waterway was susceptible to or could actually support commerce and its navigation (Propeller Genesse Chief v. Fitzhugh, 52 U.S. (12 How.) 443 (1851)). Eventually in 1874 a classic definition developed – “If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it [the waterway] is navigable in fact and becomes in law a public river or highway.” (The Montello, 87 U.S. (20 Wall.) 430, 441-442 (1874)).

1 Comment

Rivers and Harbors Act of 1899, Sections 9, 10 & 13 – Historical Legal Evolution of Environmental Law...

Rivers and Harbors Act of 1899 - An 1800’s View of Federal Commerce Power...

Wetland Regulations 101:
Regulatory History

Archives

Rivers and Harbors Act of 1899, Sections 9, 10 & 13 – Historical Legal Evolution of Environmental Law...

Rivers and Harbors Act of 1899 - An 1800’s View of Federal Commerce Power...

Wetland Regulations 101:Regulatory History

Archives​

Wetland Regulations 101:
Regulatory History

Archives