Rivers and Harbors Appropriation Act of 1899

Legislation

By: United States Congress

Date: 1899

Source: U.S. Congress. "Rivers and Harbors Appropriation Act of 1899." As Amended Through P.L. 106-580, December 29, 2000.

About the Author: The Congress of the United States was established by Article 1 of the U.S. Constitution of 1787. It is the legislative arm of the U.S. Federal Government.

INTRODUCTION

The Rivers and Harbors Appropriation Act of 1899 consolidated several existing laws and laid the groundwork for federal oversight of navigable waters within the United States.

The historical precedent for the Rivers and Harbors Appropriation Act of 1899 dates back to thirteenth century English common law. At that time, the Magna Carta required fish weirs—structures that impounded water to improve fishing conditions but impeded river travel and commerce—to be removed from rivers throughout England. The legal right to unimpeded navigation continued when the land that was to become the United States was colonized in the seventeenth century by England.

In 1824, the U.S. Supreme Court ruled that river navigation fell under the constitutionally granted authority of the U.S. Congress to regulate interstate commerce (Gibbons v. Ogden). Aaron Ogden operated steam-powered ferries between New Jersey and New York under an exclusive license granted to Robert Fulton and Robert Livingston by the State of New York. Thomas Gibbons was a competing businessman operating ferries between the same two states in violation of the exclusive license granted by New York. The court, in a decision written by Chief Justice John Marshall, ruled that river navigation between states constituted interstate commerce and therefore fell under the authority of Congress, not individual states such as New York.

Congress passed the first rivers and harbors act in 1888. It authorized the U.S. Army Corps of Engineers to require the owners of bridges obstructing navigation to remedy the situation at their own expense. At the time, the Corps of Engineers was the only existing government agency with the necessary engineering expertise. Engineering agencies such as the U.S. Bureau of Reclamation and the Tennessee Valley Authority were not created until the next century. The 1888 act was expanded in 1890 to give the Corps of Engineers broad authority over navigable waters, amended in 1892, and finally completely rewritten as the Rivers and Harbors Appropriation Act of 1899.

The concept of navigable waters has itself been the subject of legal controversy, but in terms of federal authority the definition of navigable is broad. It includes small streams along which only the smallest of boats can travel as well as rivers with stretches of unnavigable hazards such as rapids. A series of court decisions have also helped to better define the limits of federal authority over waterfront activities. Attorney General rulings during the first two decades of the twentieth century limited federal authority to activities that might impede navigation, but in 1933 the Supreme Court ruled that the Corps of Engineers could deny a permit for construction of a wharf along the Potomac River because it would be ugly. Because the proposed wharf would not have impeded navigation, the court decision provided a precedent for federal authority over activities not directly related to navigation. By the 1960s, the non-navigational activities over which the federal government claimed authority included those that might affect fish and wildlife, water quality, and the general public interest.

The most widely used provision of the Rivers and Harbors Appropriation Act of 1899 is likely Section 10, which requires a Corps of Engineers permit for any activity that fills or modifies any navigable water within the United States. Section 10 permits are a major requirement for almost every construction project along shorelines or riverbanks within the United States.

Another part of the act, Section 13, specifically forbids the discharge of any waste other than sewage into navigable waters. As such, it was the precursor of modern water quality protection laws and is sometimes referred to as the Refuse Act. Although the provisions of Section 13 cover a wide variety of activities harmful to water quality, the exemption of sewer discharge caused problems that would persist for more than a century. In 1921, for example, the government found that it had no authority to stop the discharge of oil dumped into sewers even though it posed a significant fire hazard in New York and other cities. It would also be many decades before municipalities, especially smaller cities, built adequate sewage treatment plants to reduce the discharge of human and industrial waste into navigable waters.

PRIMARY SOURCE

RIVERS AND HARBORS ACT OF 1899

SECTION 10

33 U.S.C. 403 The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.

SIGNIFICANCE

The Rivers and Harbors Appropriation Act of 1899 is significant because it established the authority of the federal government to regulate activities along almost all waters within the United States. Although the initial motivation was the need for unimpeded movement of vessels in support of interstate commerce, the act also contained provisions that recognized the importance of water quality and eventually led to specific anti-pollution legislation during the second half of the twentieth century.

FURTHER RESOURCES

Books

Office of History, U.S. Army Corps of Engineers. The History of the U.S. Army Corps of Engineers. Honolulu, Hawaii: University Press of the Pacific, 2004.

Web sites

Kovarik, Bill. "Oil Pollution and the National Coast Anti-Pollution League." The Environmental History Timeline. 〈http://www.radford.edu/∼wkovarik/envhist/coast.html〉 (accessed February 28, 2006).

Panza, Kenneth S. "Ogden vs. Gibbons (1824): Breaking the Fulton-Livingston Monopoly." Hudson River Maritime Museum. 〈http://www.ulster.net/∼hrmm/steamboats/monopoly.html〉 (accessed February 28, 2006).