 | 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)).
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)).
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