Title: Protection of Navigable Waters
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Permanent Link: http://ufdc.ufl.edu/WL00003095/00001
 Material Information
Title: Protection of Navigable Waters
Physical Description: Book
Language: English
Publisher: President's Water Resources Policy Commission
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Protection of Navigable Waters
General Note: Box 12, Folder 9 ( Water Resources Law - Vol #3 - 1950 ), Item 13
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003095
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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flictkwith any beneficial consumptive use, present or future, in
states lying wholly a. partly west of the ninety-eighth merid-
ian, of such waters for domestic, municipal, stock-water, irri-
gation, mining, orindustrial purposes.2
-: Provision of moore limited application merits notice here.
As to debris-storage reservoirs of the California D6bris Com-
mission,"' the Secretary is authorized to enter into contracts
to supply storage for water and the use of outlet facilities for
domestic and irrigation purposes and power development iiin
such conditions of delivery, use, and payment as he may
approve,.
Protection of Navigable Waters
As we have seen, Congress since 1820 has enacted numerous
laws designed'to insure and provide for improvement of rivers
and harbors in the interests of navigation. Lagging somewhat
behind came sporadic and less extensive legislative efforts to
preserve and protect the navigability of waters from encroach- -
ments by bridges, wharves, dams, 'and other structures. 'An
early example is an 1862 statute which specified navigation
clearances in authorizing the construction of bridges over the
Ohio River." Designed for idotr general protection was an
1884 act whereby Congress delegated authority to the Secretary
to require owners to provide bridges with specified aids in the
interests of navigation."' Similarly, Congress in 1890 forbade
the deposit of certain refuse matter, and prohibited the creation
of;any obstruction, "not afrmatively authorized by law" to
the navigable capacity of any waters, in respect of which the
United States; has jurisdiction, at the same time regulating
the construction of bridges and other structures."2 Still more
comprehensive, as we shall shortly see, are the provisions of
the River and Harbor Act of 1899-Section 9 through 20
being presently effective-which consolidated and supple-
mented requirements pertaining to the protection of navigable
See, e. g., Act ot December 22, 1944, 1 1(b), 58 Stat. 887, 889; Act of
March 2, 1945, S 1(b) 59 Stat 10, 11.
SSee infr., pp. 119-120.
'Act of March 1, 1893, 2 2 7 Stat. 507, 510, as amended, 38 U. S.. C. 83
Act of July 14,1862, 1,12 Stat. 569.
SAct of July 5, 1884, 8, 23 Stat, 138, 148.
SAct of September 19, 1890, 6-10,26 Stat. 426, 453.






include a "due regard for wildlife conservation," 20 Congress
in 1946 required that whenever waters are impounded, di-
verted or otherwise controlled by federal agencies, "adequate
provision consistent with the primary purposes" must be made
for wildlife resources.?" Similarly, in the management of ex-
isting facilities administered by the Army Engineers in the
upper Mississippi River, including locks, dams, and pools, the
Department of the Army was directed in 1948 to give full con-
sideration to the needs of fish and other wildlife resources
"without increasing additional liability to the Government,
and, to the maximum extent possible without causing damage
to levee and drainage dtricts, adjacent railroads and high-
ways, farm lands and dam structures, shall generally operate
and maintain pool levels as though navigation was carried on
throughout the year." 2
It has already been pointed out that Congress in 1946 made
conditional provision for the design and construction of dams
with a view to their use as supports for public highway
bridges.2 Subject to the same conditions, the statute con-
templates a like use in the case of dams already constructed.
It should also be noted that the Secretary of the Army has
authority to transfer or convey to states or political subdi-
visions thereof, title to bridges constructed or acquired in con-
nection with navigation or flood-control projects.20
With respect to specified projects in the West, Congress in
recent authorizations has expressly subordinated navigation
use of waters to beneficial consumptive use. Since 1944, all
river and harbor and all flood control acts have provided
that the use for navigation, in connection with the operation
and maintenance of works therein authorized for construction,
of waters arising in states lying wholly or partly west of the
ninety-eighth meridian shall be only such use as does not con-
Act of June 20,198,1 1,52 Stat. 802,33 U.S. C. 540.
Act of August 14, 1946, 3, 60 Stat. 1080, 101, i6 U. S. C. 668. See also
infra, pp. 329-330.
m Act of March 10, 1934, 48 Stat. 401, as added June 19, 1948, 62 Stat.
497, 16 U. S. C. 665a (Supp. III).
SAct of July 29, 1946, 60 Stat. 709, 23 U. S. C. 64. See supra, pp. 94-95.
1 Act of May 17, 1950, 10, 64 Stat. 168, -
911811-1---9







waters." In large measure, protective legislation since then
has'been confined to relatively minor modifications of the
requirements of the 1899Actf ':.
SBRaDGEo.-The 1899 statute makes it unlawful to construct
any bridge over navigable waters of the United States with;Au
the consent of Congress and the approval of plans by the thief
of Engineers and the Secretary.`* Bridges may be built under
state authority over waterways, the navigable portions of which
lie wholly within a single state, provided the location and plans
are first approved by the Chief of Engineers and the Secretary."
A 1906 statute augments the foregoing restriction by specify-
ing conditions applicable to the construction and maintenance
of bridges thereafter authorized by Congress. These tn-
ditions include provisions concerning the transmission of mails,
troops, and munitions of war; reservation to the United States
,of tkh right to construct telephone and telegraph lines across
the J 'iges; the use of the bridges by telegraph, telephone, and
railroad companies; alteration of obstructive bridges; main-
tenaoce of lights and signal]; operation of lraws; and pre-
scription of reasonable tolp by the Secretary.
In 1946, Congress enacted the General Bridge Act granting
its blanket consent for the construction, intenance, and
operation of bridges over navigable waters of the United States,
subje~ t to stipulated eonditions."r Prior to construction, lo-
cation and plans must be approved by the:Chief of Engineers
and the Secretary, who haveauthority to impose such condi
tions relating to maintenance and operation as they deem neces-
sary "in the interests of public navigation.n :,In addi-
Act of Marchil6,S9 11i- 20, 80 tiit.1121, 1151.
"Act of March 3,1898, 9, 0 Stat. 11, 1151, 38 U. S.' 401.
"' This provisIon of the 1899 statute does not apply to bridges cpqstructe
under the 1948 General Bridge Act. ee Act of August 2,1946, 1 O0, 60 Stat.
812, 849, 38 U. S. 0. 580.
Act of March 23,1906,84 Stat. 84, 88 U. S. 0.491-498.
Act of Augtut 2, 1946, 60 Stat. 812, 847, 83 U. '. C. 5 et seq.
Significant here Is the fact that bridges constructed undek tie approval
of the 1946 Act are expressly exempted from the conditions mandatory
under the 1906 statute, several of which aie uineelated to"~publib na+iga-
tion." 60 Stat. 847, 88 U. S. 0. 525.


I







tioi, the nloeatido and plans of privately owned highway
toll bridges must be approved by theiighway department or
departments of the state or states in which the bridge is situ-
ated. Where a bridge shall be between two or more states and
their highway departments are unable to agree, approval of
the Public Roads Administration is sufficient. T'he Secretary
of the Army may prescribe reasonable rates of toll for transit
over interstate bridges. States may acquire interstate toll
bridges by condemnation or expropriation, and limitations on
the amount of compensation are specified if acquisition occurs
after the expiration of five years after completion of the bridge.
Actual original costs of privately owned interstate toll bridges
must be filed with the Secretary of theArmy and the highway
departments of the states in which the bridge is located; the
Secretary may, and upon the request of the highway depart-
ment shall, within three, years after completion of the bridge,
investigate such costs and make a finding as to their reason-
ableness. His findings are conclusive for the purpose of con-
demnation or expropriation. If tolls are charged for use of
a publicly owned interstate bridge, rates must be sufficient to
make the bridge free of tolls within 30 years.i
Alteration of Obstructive Bridges.-The 1899 Act author-
izes the Secretary of'the Army, after opportunity for hearing,
to order the alteration of any bridge which he believes tobe ai
unreasonable obstruction to free navigation.m, Ii giving
notice to alter, he shall specify the changes recommended by
the Chief of Engineers.' The right to require alteration of
unreasonably ostructive bridges at the expense of the owners
has been upheld by the Supreme Court of the United States.,
But there are recent deviations from the long-established
legislative practice of requiring owners to alter such bridges at
their own expense. Two such statutes providing that the costs
of alterations be borne by the United Statesinvolve certain
m Amendment of May 5,-1948, 62 Stat. 267, 8, U. S C. 529.
mAct of March 3, 1899, 18, 80 Stat; 1121, 1168, 88 U. S. :. 502.
Id.
U Union BrIdge Oo. v. Uwnted States, 204 U. S. 864 (1907). See supra,
pp. 10-11.





s11


bridges over the Columbia River and in the Tennessee Valley."
In the caae of bridges carrying railroad traffic, a similar
but broader modification became effective in 1940 over a presi
dental vetoed" In addition to prescription of detailed pro-
cedural provisions, the 1940 legislation provides for gntapper-
tioa~ment between the United States and -the owners of the
costs of altering or relocating; unreasonably obstructive rail-
road bridges. The owner must bear such part of the costs a i
attributable to benefits accruing to him as a result of the hang,
including expectable savings in repair or maintenance costs,
and that part attributable to the requirements of traffic by
railroad or highway or both! includii g any expenditure for
increased carrying capacity of the bridge, and including such
proportion of the actual capital cost of the old bridge or sueh
part ofthe old bridge as may be altered or changed or rebuilt,
as the used service life'bf the whole or thepart bears to tB
total estimated service life of the whole or siu: part." ; T e
United States shall bear "the balance of the cost, including that
part attributable to the necessities of navigation." *
Drawbridge Operation.-Sice 1894, the Secretary 'has had
authority to prescribe siih rules and regulations, as in his
opinion the public interests require, to govern the opening of
drawbridges for the passage of vessels and other water crafts."5
'Regulation of To -As to bridges constructed under the
1908 Bridge Act, Congress authorized the Secretary to pre-

SAet of August 1, 19381 50 Stat. 648; Act of NoVember 1 1941, 0 Btat
m'r, 1a u s. C. -.831i-1.
SSee President Roosevelt's Message of June 10, 1940, H. Doc. No. 884
76th Cong., 3d sess., and Act of June 21, 1940, 54 Stat. 4t97 88U MS. 8511-
523.
'That part of the cost of alteration of a bridge used for both highway
and railroad traffic, attributable to requirementsof trafc by highway, shall
be borde by the proprietor of the highway. 6, 4 Stat.~7i, 4s9, 83 U. 9L
".;I I the alteration is desirable both because the bridge unreasonably
obstructs navigation and for some additional reason, the Secretary may
require equitable contribution from interested persons or agencies desiring
such alteration as a condition precedent to ordering the' alteration.
Act of August 18,1894, 5,28 Stat. .8, 362, as amended, 3 U. S
PO Act of August 18, 1894, 8 5, 28 Stat. 338, 362, as amended, 33 U. S. 3 499.







scribe reasonablee rates of toll." ~ From time to time, the Sec-
retary's regulatory authority over tolls has been extended to
other bridges over navigable waters of the United States.'
Withsome exceptions, toll-bridge rates are today subject to the
Secretary's regulatory power. "
DAMs; DIrs, AND CAUSEWAYs.-The 1899 Act also makes it
unlawful to construct dam, dike, otcauseway over navigable
aters bf the United States without the consent of Congress
ad approval ift'i plahs by thde Oief of Engineers and the
Secettary."S Such structures, as in the case of bridges, imay be
built under state authority in waterways, the navigable portions
of which lie wholly within a single state, if the location and
plans are first approved by the Chief of Engineers and the
Secretary.?'
As to power dawts, the requirements of this statute are satis-
fied if the construction is authorized by a license issued under
the provisions of theiFeeral Power Act.m But no such license
affecting the navigble.capacity of any nayigable.waters of
the United States may be issued until the plan of the dam or
other structure affecting navigation have been approved bythe
Chief of Engineers and the Secretary.=7
WHAnvzs, P=IB *p OrTHn STRaurruRS.-The 1899 Apt
also makes itunlwf i to create any Qbstruction, "not affirm-
tively authorized by Congress," to the navigable capacity of any
Aet of March 28,, 4, 4,34 Stat. 84, ,.as.amende 8, 381 S 494.
Act of June 10, 1980, g 17, 46 Stat 540,552, 8 U. S. C. 498a Act of June
27,1T90, .1, 46 Stat. 821, 883 U. 0. 0 48b:;Act of August 21, 1935, 49 Stat.
670, 83 U. S. 504; Act of August 2,1946, 1 503, 60 Stat. 812, 847, 88 U. S (3.
52& .
.'J& See also 49 Stat 6W0,,88 U. 8,CQ 0.&S,
m Act of March 3, 1899, 9, 30 Stat. 1121, 1151, 33 U. S. 401.
mAct of June 10 110I 41 Stat. 1068 Act f August 26, 1935, 49 Stat. 838,
as nainded, 16 UV.SL -Stae seq. ,W st4 W tates v. Appaolaian lestric
Power Co., 811 U. 877 (1940), reh. den., 812 U. S. 712 (1941). Of. Un i
StMem v. Artonaso- 29W M1U1 174, 185-886 (1985) holding that the congres-
sional grant of authority to the Secretary of the Interior to divert waters
of the Colorado River for irrigating lands in certain Indian reservations
did not constitute the "consent of Congress" required under the 1899 Act.
m Act of June 10, 1920, 1 4(e), 41 Stat. 1068, 1065, as amended, 16 U. S. 0.
'7r(e).







of the waters of the United States." Also made unlawful is the
building or mnnmencing of building of any whaf, pier, dolphin;
boom, weir, breakwater, bulkhbed, jetty, or other structure
iai l any navigable waters of the United States, outside estab-
lished harbor lines, or where no, harbor lints have been estab-
lished, except on plans recommended by- the Cbief- of iSa
neers and authorized by the Secretary" 'So also as to an&
;lteration of the odrse, location, condition, or capacity of any
port, roadstead, haven, harbor, canal, lake, harbor of refuge
or enclosure within the limits of any breakwater, or of the chan-
nel of any navigable water of the United States. -, Authority
is ils, provided for the Secretary;-whe.e he deems it essential
to the preservation and protection of harbors, to eamie haba r
lines to be established, beyond which no pies, wharves; bulk
heads, or other wbrks iay be extended o'deposits made, exept
under siuc regllati6ns as he may prescribe 4 -
IGHarT 16 POarBriT DIVRERSION OF WtEn.-It is important
to note the breadth of the foregoing prohition in the 1899Act
against the creation of unauthorized obstructions to the navi-
gable capacity of navigable waters of the United States."
In upholding the right of the 'ifed Stated, under a similar
1890 legislative prohibition, to enjoin a proposed irrigation
diversion in the nonavigable upper reaches oa navigable
stream, the Supreme Court Ji 1899 said: ,
It is not a prohibition of any obstruction to the naviga*
S tion, but any obstruction to the navigable capacity, tid
anything, wherever done or however doi within the
S limits of the jurisdiction of the United States which
tends to destroy the navigable capacity of one of the
navigable waters of the United States, is within the
terms of the prohibition.

Act ofMarch 3, 1898, i 10, 80 Stat. 11211, 88U. 8, 0. 48.
-Id.
11, 30 Stat. 1151, 33 U. S. 0. 404.
I10, 30 tat. 1151, 83 U. S. 0.408.
SVMited States v. Rio Grande Irrigation Oa., 1T4 U. &: 090, 708 1899).
See Act of September 19,180, 110, 26 Stat 426,454'.


1







RaFss MArrER,-For the most part, legislation regulating
the use of navigable waters as depositories or carriers of refuse
matter has been confined to preventing impediments to navi-
gaiion. We shall examine here;the principal laws involved,
reserving for discussion later a recent legislative effort to deal
with the subject of pollution, as it is commonly understood."
In; a 1886 prohibition against deposit of specified refuse mat-
ter, Congress confined its application to New York Harbor.w
Two years later,'Congress prohibited deposit in any manner in
the tidal watersof Now York Harbor, and certain adjacent
waters of any kind of matter "Other than that flowing from
streets, sewers, and'passing therefrom in a liquid state."'
A line officer of the Navy, designated by the President as su-
pervisor of the Harbor -and acting -uade the direction of the
Secretary of theAisa : is A arged; with enforcement of 4he
provisions of the Act." There followed shortly a prohibition
of general application, when Congress included in. the 1890
River and Harbor Aet a provision making itnlawful to de-
posit in any navigable water of the United States pppoid
refuse matter "which hall tend to impede or obstruct n1v-
gation." Authority was granted to the Secretary to issue
permits for sucheposits in places where navigation would not
be obstructed.
Likewise limited are'the provisions in the 1899 law in force
today.24 They apply any kind ofrefuse matter "other than
that flowing from streets and sewer&aid passing therefrom in
SLa 'liquid state." The Act's prohibition against deposit of such
nmtter extends not only to navigable waters, but also to any
tributary from which the refuse matter may be washed into a
advigable water. Similarly, it is declared unlawful to deposit
LSee nfra, pp. 88-842.
"Act of August 5, 1886, I 8, 24 Stat. 1i;, 29. The prohibition extended
to "ballast, stone, slate, gravel, earth, slack, rubbish, wreck, filth, slabs,
edgings, sawdust, slag, or cinders, or other refuse or mill-waste of any
kind."
Act of June 29,1888, 1 1, 25 Stat. 209, as amended, 33 U. S. 0. 441 et seq.
"i 25 Stat. 210, 33 U. S. C. 451.
Act of September 19, 1890, 6, 26 Stat. 426, 453. See also Act of August
18, 1894, 13,.28 Stat. 88, 360.
"Act of March 8, 18990~ 13,80 Sta 1121, 1288 12 .U. 8. (. 407.






material on banks from which it is liable to be washed into a
navigable water "whereby.navigation shall or maybe impeded
or obstructed." And the Secretary is empowered to permit the
deposit of any material in navigable waters whenever in the
judgment of the Chief of Engineers 'anchorage and navigation
will not be injured thereby." A modified version of this
statute wasaenacted in 1910 for restricted application to Lake
Michigan opposite or in front of Cook County,illinoisa"
Protection of navigation was again made the limited objec-
tive of a 190& statute which empowered the Secretary to pre-
scribe regulations governing the transportation and dumping
into navigable waters of 'dedgings, earth, garbage, or other
refuse materials "whenever in his judgment such regula-
tions are required in the interest of navigation."`' w -This pro-
vision is specifically inapplicable to waters used for cultivation
of oysters, "except navigable channels which have been or niay
hereafter be improved by the United States."
A slightly broader' objective was conteniplated by a 1924
statute relating to the discharge of oil from vessels into all "por-
tions of the sea within the territorial jurisdiction of the United
States, and all inland waters navigable in fact in which the tide
elbbs and flows." ~ in addition to prohibiting such discharge
except in emergency cases, this statute authorizes the Secretary
to prescribe regulations permitting discharge of oil in cirocm-
stances deemed by him not to "be deleterious to health or sea-
food, or a menace to navigation, or dangerous to persons or
property engaged in commerce on such waters, and for the load-
ing, handling, and unloading of oil."
Californid Debris Commission.-In connection with laws
relating to refuse matter, reference should be made here to the
California Debris Commission. Created in 1893, this Commis-
sion has certain jurisdiction over hydraulic mibing in the ter-
ritory drained by the Sacramento and San Joaquin river sys-
SBut see infra, p. 841.
m Act of June 23, 1910, 6 Stat. 59, 83 U. S. 0. 421.
"Act of March 8, 1905, S 4, 3 Stat. 1117, 1147, 88 U. S. C. 419.
SAct of June 7, 1924, S 2(c), 43 Stat..604, 605, 83 U, S. 0.431.







.tems., Except wheiA permitted. under the Act, hydraulic
mining directly or indirectly injuring navigability is made
unlawful.3
The CommissiQnhas the duty to mature and adopt plans,
from such examinations and surveys as it may deem necessary,
as will improve the navigability, of all rivers comprising the
systems, deepen their channels, and protect their banks. Such
plans must be matured'"with a view of making the same effec-
tive as against the encroachment of and damage from debris
resulting from mining operations, natural erosion, or other
causes,: with a view of restoring, as near as practicable and the
necessities of commerce and navigation demand, the naviga-
bility of said rivers to the condition existing" in 1860, ,and
permitting hydralic mining without injury to navigabilty.2
.The Act provides for construction by the Commission of
certain restraining Nworks, for a system of permits for hydraulic
mining operations, and for payment by the operators for "each
cubic yard mined from the natural bank a tax equal to the total
capital cost of the dm,' reservoir, and rights-of-way divided
by the total capacity f the reservoir for the restraint of
debris:"' r
VESSELS.-In addition to providing against other impedi-
ments to navigationi"the aforementioned 1899 statute makes
it unlawful to tie up or anchoi vessels or other craft in navi-
gable channels in sich a manner as to6bstruct passage of other
craft., Vessels sunk in navigable channels must be marked
by the owners and diligently removed.26 *
Act of March 1, 1893, 3, 27 Stat. 507,33 U.. C. e88. 1y and with the
advice and consent of the Senate, the President appoints the three Commis-
sion members from q icers of the Army Engineers. It functions under .the
supervision of the Chief of Engineers and the direction of the Secretary.
Adtaof Mavhb 1, i1t, fi; 17 Stat. 507,7 'ti.Je; 6.61.
S8, 27 Stat. 507, as amended, 33 U. S :(8i,.
.,27 tat, 507,,gs amended, 33 U. S. C. g 64
23,27 Stt.510,3 U. C. 683.
'"Act of-Matre i8, i89k' 15, 80 Stat. 1121, 1152, 33 U. S. C. 409.
"Id. If sunken vessels are not marked by their owners, the Commandant
of the Coast Guard at the expense of the owners marks them for the protec-
tion of navigation, until they are abandoned, at which time the Secretary
of the Army takes over the marking duties. B. 8.' 4676, from Res. of March
2, 1868, No. 16, 1,15 :tat. 249, as aniaded, 3S U. S. O. 786.







iThe 1899 Act also provides authority for the Secretary to
remove sunken vessels obstructing or endangering navigation,
if such obstruction has existed for a longer period than 30
days, or whenever the abandonment of such obstruction can
be legally established in lesser space of time." In emergency
cases of serious interference with navigation, immediate pos-
session and removal or destruction of the craft may be under-
taken.=1
LoG AND TMBE.-The 1899 Act also makes it unlawful to
float loose timber and logs or "sack rafts of timber and logs"
in streams actually navigated by steamboats in such a manner
as to "obstruct, impede, or endanger navigation." .2 In the
following year, this prohibition was made inapplicable where
the floating of loose timber and logs and sack rafts "is the
principal method of navigation," and such navigation was made
subject to regulations to be prescribed by the Secretary.

International Commissions
In connection with certain boundary waters between the
united States and Canada and between the United States and
Mexico, relevant provisions of law so differ from those: con
sidered thus far as to make desirable their separate considera-
tion.
INTERNATIONAL JOINT COMMISSION.-As to boundary waters
between the United States and Canada, the International Joint
Commission has, among others, certain duties and respondibili-
ties relating to navigation. It was created by the 1909 treaty
between the United States and Great Britain, the purpose of
which was: i
to prevent disputes regarding the use of boundas r
waters and to settle all questions:which arenow pending
"Act of March 3, 1899, 19, 30 Stat. 1121, 1154, 38 U. 0. 414.
1 20,30 Stat. 1154,33 U. S. 0. 415.
:1- 15,30 Stat. 1152, 8 U. 8 C. 409.
SAct of May 9, 1900, l 1, 81Stat 172, 33 U. S. 0. 410.
S6 Stat. 2448. The Commission consists of six members, three repre-
senting the United States and three representing CauAda.




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