Rivers and Harbors Appropriations Act

The modern form of the Rivers and Harbors Act was enacted in 1890, and amended by the Rivers and Harbors Appropriation Act of 1899, also known as the Refuse Act. It was amended again several times during the twentieth century. In general, the act prohibits the dumping of refuse into navigable waters or the creation of any navigational obstruction, and it regulates the construction of wharves, piers, jetties, bulkheads, and similar structures in ports, rivers, canals, or other areas used for navigation.

Although the Clean Water Act now predominates in the regulation of surface water pollution, the Rivers and Harbors Act remains valid law. It provides useful supplemental jurisdiction for addressing certain kinds of water pollution, and especially for dredge and fill activities. As with the Clean Water Act, discharges of refuse or fill material, or construction activities in waterways, require a permit. The permitting agency is the Army Corps of Engineers rather than the Environmental Protection Agency, reflecting the essentially navigational concerns of this legislation.

The Rivers and Harbors Appropriations Act imposes civil and criminal penalties. Criminal convictions discourage activities that either directly or indirectly seek to evade permitting requirements. Statutory shortcomings include the absence of a state role and the act's inapplicability to municipal discharges. In addition, earlier case law restricted its application to actual interference with navigation, rather than construing the act as widely applicable to activities in navigable waters. More recent case law, however, has broadly reinterpreted the act's purpose and specifically the term "obstruction."

As a result of this trend, the U.S. Army Corps' inclusion of environmental considerations, such as the effect of a structure on vegetal habitat and the impacts of resulting shadows, in reaching its permitting decisions has been upheld. Nonetheless, recent law has also upheld, against environmental challenges, Army Corps' environmental assessments and environmental impact statements that minimized or rejected claims of adverse impacts, even when the Army Corps differed with the EPA on practical alternatives. As a consequence, the Rivers and Harbors Appropriations Act is useful for environmental challenges, especially in view of its criminal penalties, but challengers should not assume that the statute will always be successful in a legal setting in achieving environmental goals. Its usefulness as a means of reducing or eliminating pollution is restricted.

see also Laws and Regulations, United States.

Bibliography

Weinberg, Philip, and Reilly, Kevin A. (1998). Understanding Environmental Law. New York: Matthew Bender & Co.

internet resource

Hudson Watch Web site. "The Nation's Original Environmental Statute." Available from http://www.hudsonwatch.net/fyi.html.

Kevin Anthony Reilly