The Rivers and Harbors Act of 1899, also known as the RHA and as the Refuse Act, is the oldest federal environmental law in the United States. The RHA authorized the U.S. secretary of the army to maintain freedom of navigation and to prevent obstruction in U.S. waters. The RHA prohibited the deposit or discharge from any ship or other floating craft or from shore installations, such as wharves, manufacturing establishments, or mills, of any refuse materials into a navigable U.S. water or its tributary. It also prohibited the deposit of any materials on the bank of any navigable water or its tributaries if navigation would be impeded. Exceptions could be granted for the construction of public works and activities taken for improvement of navigable waters.
The law provided for fines in the amounts of $500 to $2,500 for violations of the law's requirements, which were classified as misdemeanors, as well as imprisonment for 30 days to one year. The law also had a “bounty hunter” provision, which allowed that one-half of the fine would be paid to the person providing information that led to a conviction.
Starting in 1870, there was a series of rivers and harbors acts passed by the U.S. Congress that provided funding for oversight of navigation, infrastructure, flooding, and other problems associated with the nation's waterways. In the 1880s and 1890s, the U.S. Army Corps of Engineers was directed by Congress through these acts to prevent dumping and filling of the nation's harbors. In 1892, in the Port of Pittsburgh, the corps took a grand jury on a tour of the harbor and obtained 50 indictments of firms dumping debris into the harbor. In 1893, at the direction of the corps, a community in Ohio was required to build an incinerator to burn refuse rather than dump it in the river, where the corps indicated that it obstructed navigation.
Approved on March 3, 1899, the RHA continued to address projects and activities in navigable waters and in harbor and river improvements and added on activities to control water pollution. This law was still used in the early 2000s to regulate the navigability of interstate waterways and harbors.
The U.S. Army Corps of Engineers was delegated the authority to implement Sections 9, 10, 13, and 14 of the RHA. The Army Corps of Engineers is an organization of the U.S. Army, headquartered in Washington, DC, that is responsible for providing engineering services, including the planning, design, construction, and operation of water resources and other civil works projects, designing and managing the construction of military facilities for the U.S. Army and the U.S. Air Force, and providing design and construction management support for other Defense and federal agencies. In 2012, the staff consisted of about 37,000 civilian and military personnel. The corps is commanded by the chief of engineers, who serves as a staff officer at the Pentagon.
Also involved in the implementation of the RHA is the secretary of the army. When the RHA passed in 1899, the position was referred to as the secretary of war, which was in the Department of War. On September 18, 1947, the secretary of the army replaced the secretary of war, and the Department of War became the Department of the Army within the newly created Department of Defense.
The pollution-preventing sections of the RHA of 1899 include the following:
Since its passing, the RHA has been used, or attempted to have been used, to protect the environment and public health. In 1910, the corps used Section 13 to object to a proposed sewer in New York City. However, a judge ruled that pollution control should be left to the individual states. In 1911 the chief of engineers recommended that treatment facilities and dumping prohibitions should either be made compulsory or encouraged throughout the United States, but his suggestions were not implemented.
In 1960 a Supreme Court decision in U.S. vs. Republic Steel Corp. interpreted that obstruction to navigation does include water pollution. The Court found that anything within the limits of the jurisdiction of the United States that tends to destroy the navigable capacity of a navigable waterway is prohibited by the RHA. Republic Steels' unpermitted discharge of industrial solid wastes (that is, iron production deposits) had reduced the depth of the Calumet River 4–9 feet and was considered an obstruction to the waterway. Republic Steel argued that the discharge was lawful due to the RHA's exemption of liquid sewage, but the Court said the liquid sewage exception was only for solids that would decompose in the water.
In 1966, the Supreme Court in the case of the U.S. vs. Standard Oil Company, defined the term refuse in the RHA as “all foreign substances and pollutants.” Standard Oil had spilled jet fuel into a waterway, and the Court reasoned that unused oil had the same environmental effects as used oil, and so it was prohibited from discharge.
As a result of this 1966 ruling, it was clear that any person or corporation that did not have a permit to discharge anything into the water could be found criminally liable. In the decades since the RHA was passed, only 415 permits were requested. However, there were an estimated 40,000 industrial plants discharging effluent into navigable waters and thus subject to criminal indictment. During the early 1970s, cases continued to be tried under the RHA.
Also in the early 1970s, environmental groups and citizens used the “bounty hunter” provision, which allowed one-half of fines imposed upon a polluter to be given to the informer upon conviction to bring cases for trial under RHA. Most of the cases brought by bounty hunters were successful only if the federal government participated in the prosecution.
On December 23, 1970, a few weeks after the establishment of the U.S. Environmental Protection Agency (EPA), President Richard Nixon announced that the RHA would be modified to improve the permitting process. However, the permitting process would depend greatly on industries to provide information on their effluent makeup. Also, the government was tasked to issue regulatory standards for several categories of industries, which was expected to take years. Violations of permits would be tried through civil suits and not through criminal suits. In 1971, the permitting plan was invalidated in Kalur v. Resor, which was brought by environmentalists who wanted to prevent the corps from issuing permits on the highly polluted Ohio River. The first ground of the case as declared by the Court was that the purpose of the Nixon permit plan was to undermine RHA's criminal provisions. The second ground was that the corps had not written an Environmental Impact Statement (EIS) for each application as required by the National Environmental Policy Act of 1969 (NEPA).
With the creation of the EPA and the passage of the Federal Water Pollution Control Act of 1972, known as the Clean Water Act, the use of the RHA as the dominant federal criminal law enforcement tool against water pollution decreased. From 1966 to 1970, over 400 RHA criminal indictments were filed; between July 1971 and December 1972, there were 169 RHA criminal indictments; in 1973, there were 57 cases, and in 1974 only 22 referrals. In 1976 the EPA stopped reporting on RHA cases, although it was still used in certain situations.
RHA's continued use includes use of its criminal penalty process because it is easier to undertake than a Clean Water Act (CWA) case, since conviction in an RHA case only requires proof of a discharge, rather than the expensive and time-consuming analysis of the effluent and the receiving waters that is required by the CWA. The RHA also criminally prohibits any kind of discharge (except for refuse “flowing from streets and sewers and passing from there in a liquid state”) with the CWA cannot be used to criminalize nonpoint source dischargers, which include landfill and septic system polluters, agricultural pollutants, forestry activities, urban runoff, abandoned mines, and construction on sites smaller than five acres.
The EPA also uses the RHA for oil spills in waterways reported by the Coast Guard because the RHA has no liability limit for recovery of costs, whereas the CWA permits recovery only to the value of the boat or ship responsible for the spill.
See also Clean Water Act (1972, 1977, 1987) ; Water pollution .
Franz, Andrew. “Crimes Against Water: The Rivers and Harbors Act of 1899.” Tulane Environmental Law Journal 23 (2010): 255–78.
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC, 20460, (202) 272-0167, http://water.epa.gov .
Judith L. Sims