Dikes and Causeways in Navigable Waters: The Rivers and Harbors Act of 1899 and its Conflicting Interpretation in Citizens Committee for the Hudson Valley v. Volpe and Petterson v. Resor

One of the earliest victories for environmentalists was achieved in Citizens Committee for the Hudson Valley v. Volpe, 302 F. Supp. 283, 1 ELR 20001 (S.D.N.Y. 1969). In that case New York State was barred from constructing a highway along the Hudson River because necessary authorization, including the consent of Congress, had not been obtained for two structures which were to support part of the road bed — a dike along the river and a causeway linking the dike to an existing bridge across the river. The court found that Congressional approval for both the dike and the causeway was required by the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 401, et seq., and that the additional approval of the Secretary of Transportation was required for the causeway before the Corps of Engineers could issue a permit for the necessary landfill. The court of appeals affirmed the district court's interpretation of the statute, 1 ELR 20006 (2nd Cir. 1970), and the government's petition for certiorari was denied, 400 U.S. 949 (1970). Almost a year later, on Nov. 20, 1971, New York State Governor Nelson A. Rockefeller added the appropriate capstone to this clear cut victory by announcing that plans for the Hudson River Expressway would be scrapped. N.Y. Times, Nov. 21, 1971, at 1, col. 1. However, the recent decision in Petterson v. Resor, 2 ELR 20013 (D. Ore. Oct. 4, 1971), rejects the statutory interpretation which was decisive in the Hudson River Expressway litigation. This decision indicates that the issue of when Congressional approval is required for structures in navigable waters will probably have to be resolved by the Supreme Court or by Congress itself.

Citizens Committee for the Hudson Valley v. Volpe

The Hudson River Expressway controversy centered on New York state's plans to build a state-financed highway from Tarrytown to Ossining along the east shore of the Hudson River, in substantial part by filling the river's shoreline as a base for the road. The landfill was to extend for 4 1/2 miles of the highway's 9 mile length, and would at its widest point jut 1/4 mile out into the river. Opponents, a coalition of environmental organizations and a local municipality, contended that the Expressway would destroy important marine life habitat and would impair the scenic, historic and recreational resources of the Hudson River Valley. After unsuccessful attempts to block the highway through federal and state administrative agencies, [2 ELR 10020] opponents of the Expressway filed suit in federal district court in 1969.¹

After a 29-day trial on the merits,² the district court held that the Corps of Engineers landfill permit was invalid for two reasons: (1) construction of the Expressway would have required a dike to be built in a navigable river without Congressional approval first having been obtained in violation of Section 9 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401; and (2) it would have left the Department of Transportation no discretion to consider alternative approaches to the fill from the Tappan Zee Bridge other than a causeway. Section 401 and the Department of Transportation Act of 1966, 49 U.S.C. § 1655(g), require that such causeways be approved by the Secretary of Transportation and Congress.

Whether the permit did indeed authorize a dike within the meaning of § 401 was both a question of law and of fact. Whether a "dike" was required for the construction of the Expressway wasthe heart of the controversy. The court also had to determine whether the causeway issue was treated similarly.

The court read § 401 as requiring Congressional approval of any structure which fit within the ordinary meaning of the word dike: "an embankiment for controlling or holding back the waters of a sea or river." Random House Dictionary of the English Language, p. 403 (1967). This interpretation was premised on the breadth and clarity of the statutory language and the absence of any legislative or judicial authority to the contrary. Citizens Committee for the Hudson Valley v. Volpe, 1 ELR 20001, 20002 (S.D.N.Y. 1969). A more restricted interpretation of § 401 — one which would have confined the requirement of Congressional approval to those dikes which substantially affect navigation — was specifically rejected. Applying the broad definition to the facts at hand, the court had no trouble finding that the Corps had attempted to authorize a "dike." In fact, the Corps itself had referred to the structure as a dike. Under the Corps of Engineers' permit the state was authorized "to dredge and place fill protected by stone slope protection and to construct piers and bulkheads with floats and mooring piles; the dredged material to be suitably retained by dikes to prevent its return into the waterway," (emphasis supplied by the district court) 1 ELR 20002. Several of the states' planning documents also referred to stone and rock dikes as part of the construction project. Defendants had contended that the dikes referred to in the permit and plans were construction dikes — not the engineering dikes which rigidly confine water flow and in that way affect navigation. (see Post-Trial Memorandum of Defendants Volpe, Resor, Cassidy and Hickel, ELR Dig. [42] Doc. J, pp. 12-13). But the district court found that only Congress could approve a dike of any kind and that the permit did purport to authorize a dike. The court also held in the alternative that even if the statutory word "dike" were construed so as to refer only to engineering dikes, the Corps' permit was still invalid. This was because the court had found that the dike would actually control the river by preventing it from returning to its natural shoreline and would increase the force of the ebb tide by 10 percent.

"Causeways" were treated similarly and were also broadly defined. However, the factual questions were more complicated, because there were two structures which plaintiffs alleged were causeways under § 401. Plaintiffs had argued that the entire project would be a causeway since it would support a raised road over water. This definition included the structure supporting the roadway connecting the Tappan Zee Bridge and the landfill area. The court instead accepted defendants' definition — a raised roadway with water on both sides. This excluded from the definition of causeway all of the project except the connecting link between bridge and landfill. Regarding this remaining segment of the project, defendants argued that it had not been authorized by the challenged permit, because the sloping access structure was not in itself part of the landfill project. Therefore, Congressional approval for the challenged permit was unnecessary, because the access causeway was outside the scope of the permit. The district court disagreed and held that because the permit would allow New York State to build a structure which could only be utilized effectively if later it was connected to the bridge by a causeway, the Corps had negated the discretionary authority of the Secretary of Transportation to approve causeways transferred to him by the Department of Transportation Act of 1966, 49 U.S.C. § 1655(g).

In an opinion which has become a landmark for its treatment of the doctrine of standing, the court of appeals affirmed the district court's decision. Citizens' Committee for the Hudson Valley v. Volpe, 425 F.2d 97, 1 ELR 20006 (2nd Cir. 1970). The review of the lower court's interpretation of § 401 and that court's factual findings regarding dikes and causeways was both thorough and concise. The court stated that its affirmance was based on a careful review of the evidence and on an evaluation of the governing rules of statutory interpretation. The court rejected all arguments supporting defendants' contention that the structures authorized by the permit did not require Congressional and — in the case of the causeway — DOT approval. Defendants' briefs treated not only the factual [2 ELR 10021] contentions made in the court below but also the notion that the legislative intent animating the Congress in 1899 was the desire to limit the obstruction of navigable waterways. Brief for Federal Appellants, p. 24, ELR Dig. [42] doc. B. Through these briefs the court was also advised of the consistent administrative practice of the Corps of Engineers in construing § 401 as requiring Congressional approval only for dikes that obstructed navigation. The court was also informed that Congress had been made aware of this administrative interpretation continually over the years. Brief, supra, at 26. Although the court of appeals did not specifically and expressly analyze each of the arguments supporting a restricted interpretation of § 401, it is reasonable to conclude that as part of the case they were implicitly rejected by the court

Petterson v. Resor

The decision in Petterson v. Resor, 2 ELR 20013 (D. Ore. Oct. 4, 1971), caps a controversy very similar to the Hudson River Expressway battle. Prior to 1968 the Port of Portland decided to expand the Portland International Airport by dredging and filling one square mile of the Columbia River near Portland just across the river from Vancouver, Washington. A runway and an interstate highway would traverse the filled area. The highway would cross the river on a bridge to be constructed at the end of the landfill. The landfill would obliterate almost all of three islands, which are publicly-owned wildlife refuges with substantial recreational value. Portions of these islands were acquired with federal funds for park purposes. The proposed landfill also would permanently close the south channel (South Slough) of the Columbia River and divert its flow into the north channel. As in the Hudson River Expressway controversy, the opponents of the landfill in the Columbia River — a coalition of local and national environmental organizations — contended that the project would destroy important fish and wildlife resources and impair scenic, historic and recreational resources. They also contended that the highway-airport complex would substantially increase air and noise pollution in the Columbia River Valley. After unsucessful appeals to the federal and state administrative agencies responsible for the project, the opponents of the Columbia River landfill filed suit in federal district court in 1969. One of the theories of their suit was that the permit issued by the Army Corps of Engineers was invalid because it authorized dikes and causeways which required approval by Congress and the Secretary or Transportation. (see ELR Dig. [15])

A dismissal for lack of standing³ delayed a decision on the merits until October 4, 1971. At that time the court held the permit authorizing the landfill was valid under section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. The court rejected the argument which was successful in Hudson Valley that the dikes included in the permit for the landfill required Congressional approval. The court also rejected the contention that the Corps' permit for the landfill would foreclose all alternatives to the construction of causeways. Hence approval of the causeways by the Secretary of Transportation and Congress did not have to precede issuance of the landfill permit because no causeway was authorized by the permit. The court stated it was not following the lead of Hudson Valley on the dike issue because the legislative history of the Rivers and Harbors Act and the administrative practice under that act supported a narrower interpretation of § 401:

Here, defendants presented the evidence of legislative history and consistent administrative practice which was not before the court in Hudson Valley. This evidence supports the defendants' contention that § 401 requires Congressional constent for dikes only when they are obstructions to navigation. To accept plaintiff's contention that any structure within the dictionary definition of a dike requires Congressional consent is to ignore the language and purpose of the legislation and its interpretation for almost 70 years. Petterson v. Resor, 2 ELR 20013, 20015 (D.Ore. Oct. 4, 1971).

Conflicting Interpretations

The opposite decisions on the dike issue in Hudson Valley and Petterson were obviously due to directly conflicting interpretations of sections 9 and 10 of the Rivers and Harbors Act. In Hudson Valley the court of appeals found that the structure in question was in fact a dike and that section 9 required Congressional approval for all dikes. (The district court also found that the dike at issue would obstruct navigation, but this finding was not the rationale for the 2nd Circuit's affirmance.) The Petterson court also implied that the structure called a dike in the Corps's permit for the Columbia River landfill was in fact a dike. However, the Petterson court attacked the Second Circuit's decision, arguing that it was based on an imcomplete analysis of the legislative historyof the Rivers and Harbors Act. Instead, the Petterson court maintained that section 9 requires Congressional consent for dikes only when they are obstructions to navigation. Further, the court seemed to hold as a matter of law that a dike obstructs navigation only when it is placed across a navigable river.

The source of the disagreement over which dikes must [2 ELR 10022] receive Congressional consent is the language of Sections 9 and 10 of the Rivers and Harbors Act of 1899, 30 Stat. 1151 (March 3, 1899). These two provisions are codified at 33 U.S.C. § 401 and 403, respectively. In pertinent part they provide:

Section 9. It shall not be lawful to construct … any bridge, dam, dike or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until plans for the same shall have been … approved by the Chief of Engineers and by the Secretary of War: Provided that such structures may be built under the authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are approved by the Chief of Engineers and by the Secretary of War ….

Section 10. That the creation of any obstruction not affirmatively authorized by law to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build … any wharf, pier, dolphis, 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 War; and it shall not be lawful to excavate or fill or in any manner alter the course, location, condition, or capacity of, any port … 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 War ….

Legislative History

The legislative history of these two provisions began in 1896 when Congress passed section 2 of that year's Rivers and Harbors Appropriation Act, 29 Stat. 234 (1896). The provision directed the Secretary of War to collect all federal statutes dealing with navigable waterways, to propose a draft statute incorporating this statutory law, and to propose amendments thought necessary to the public interest. On February 13, 1897, the Secretary of War forwarded to Congress a compilation of existing statutes and a draft by the Chief of Engineers of a statute which purported to restate existing statutory law (H.R. Doc. Vol. 58, 54th Cong. 2d Sess. 1896-97, No. 293).

This legislative proposal certainly represented the Corps of Engineers' view of the then current state of the onnavigable waters. But it definitely was not a mere codification of existing statutory law as we shall see.

Of the statutes compiled by the Corps in 1896-97, the provision which was the predecessor of sections 9 and 10 was section 3 of the Rivers and Harbors Act of July 13, 1892, 27 Stat. 111.⁴ This provision was originally enacted in 1890 and re-enacted with slight modification in 1892. It prohibited the construction of certain structures, including wharves, piers, bulkheads and dams which would obstruct or impair navigation in navigable waters, unless they first were approved by the Secretary of War. Also prohibited were unapproved modifications of navigable waterways such as dredge and fill operations. A separate clause prohibited the construction of bridges and causeways in navigable waters unless they were approved by the Secretary of War, but a proviso to the section limited the reach of the clause dealing with bridges to navigable waters "wholly within the limits of one state". The effect of this proviso was to withhold from the Secretary of War the authority to approve bridges in interstate navigable waters. The proviso had no effect on his authority to approve causeways or dams and bulkheads, and the like.

Several differences between the 1892 statute and sections 9 and 10 of the 1899 act are apparent. (1) The earlier statute did not require Congressional consent for the various types of structures in navigable waters which section 9 of the 1899 act reserves for Congressional approval, except that Congress still had to approve bridges across interstate navigable waters. (2) The earlier statute does not make the same distinctions between structures in navigable waters as are made in sections 9 and 10 of the 1899 act, and actually lumps dams and causeways with bulkheads and piers with respect to the Secretary of War's authority to approve them. (3) The earlier statute does not mention dikes.

With the compilation of statutes and the draft legislation submitted to Congress in 1897, the Chief of the Corps of Engineers also provided a "brief" which states the purpose for replacing section 3 of the 1892 act with sections 9 and 10 of the 1899 act. The stated purpose was to clarify, not to change, existing law. The brief is a complete statement of the purpose which the Chief of the Corps of Engineers thought the bill would serve. According to the Corps's brief, the purpose of existing law — section 3 of the 1892 act — was to protect the large federal investment which had been made in improvements of rivers and harbors from obstructions such as "bridges, piers, wharves, etc." Prior to federal legislation on the subject such structures were built under state or local authority because of the absence of controlling federal law.⁵ Early federal legislation was [2 ELR 10023] designed to preempt state regulation of structures in navigable waters and place this authority in the federal government, acting through the Secretary of War. Because these earlier statutes had not clearly stated what authority Congress delegated and what authority it reserved, confusion had resulted. The Corps' brief attempted to explain the rationale of the existing statutes and to support the claim that its draft legislation was merely eliminating this confusion.

In the case of bridges, it has been the custom, from the beginning of the Government, for parties desiring to build them across the important inter-state rivers, to apply to Congress for special authority therefor; but across the smaller, less-important streams bridges had been constructed by private parties, municipalities, railroad companies, under authority of State laws, and no one being charged with the duty of seeing that navigation interests were protected, many of such structures proved unreasonable obstructions to navigation. To prevent this Congress provided, in the section under consideration, [Section 3 of the Rivers and Harbors Act of 1892] that it should not be lawful to build a bridge under authority of a State law until the plans therefor had been presented to and approved by the Secretary of War. In other words, Congress in effect directly conferred upon State legislatures the power to authorize the construction of a bridge, and if it had not been qualified by a proviso, this power would have extended to all navigable waters. But by this proviso the power was expressly limited to streams wholly within the limits of a single State. So that, since the enactment of the law, if a bridge is to be built across an inter-state stream special authority therefor must be obtained from Congress, if across a stream wholly within the limits of a single State, Congress may authorize it, or it may be built under authority of a State law provided the plans are submited to and approved by the Secretary of War. This is the interpretation originally placed upon the law by the War Department and by the Department of Justice, and that it is the correct one is proven by the proceedings of Congress itself.⁶

The brief points out that because the Corps' interpretation of the law was not universally accepted, bridges and dams had been built across interstate navigable rivers without Congressional consent. Therefore, the brief argues for the passage of sections 9 and 10 of the Rivers and Harbors Act of 1899 to make the law plain on the subject of bridges in navigable waters.⁷

For all Congress may have intended to reserve to itself authority to approve major structures other than just bridges in interstate navigable waters, the statute enacted in 1892 gave little hint of it. The Corps' brief laments that, in violation of the statute, bridges and dams might be built in interstate navigable waters without Congressional consent because of the confusion in the law then extant. But the 1892 statute seems to divide these two structures — when placed in interstate navigable waters — into different categories. The Secretary of War is authorized to approve various types of structures, including dams, bridges and causeways, in all navigable waters.The statute's proviso then limits his authority regarding bridges to only those in navigable waters wholly within one state. Congressional authority over bridges in interstate navigable waters is not delegated at all and may be assumed to be reserved to Congress. But authority to approve dams and causeways in navigable waterways is delegated to the Secretary of War and is not limited by the proviso. Congressional intent may well have been better captures in the brief that it received in 1897 than in the statute it enacted in 1892, but it is the statute which was the law prior to 1899.

Congressional reaction to the Secretary of Army's report and accompanying papers was almost nonexistent. Although the proposed legislation was studied and reported out by the Senate Commerce Committee, and presumably received similar treatment in the House, no committee reports on this proposed amendment to the 1899 appropriation bill were produced. When offered on the floor of the Senate the short debate centered on whether the proposed amendment need even be read to the body since allegedly it was merely a "compilation" of existing law and "not ten words" in existing statutes had been changed. The amendment was never read to the Senate and was attached to the appropriation bill as a mere compilation of existing statutes.⁸

[2 ELR 10024]

Need for Clarification

The legislative history of the Rivers and Harbors Act of 1899 thus can not solve the riddle of which dikes must receive Congressional consent. Although it reveals a desire to clarify the law so as to prevent unreasonable obstruction of major waterways it is not clear that the Congress — or the Corps for that matter — determined that the potential for unreasonable obstruction of navigation would be presented only when a dike was to be built across a river and thus reserved only these dikes for Congressional approval. It is just as likely that the Corps of Engineers had determined that most dikes built in navigable waters presented such a threat to navigation that as a matter of policy any dike proposal should receive Congressional scrutiny. If this was not the Corps' intent in proposing the legislation — and there is little in the legislative history to suggest that it wasn't — it still may have been the reason for Congressional action. The grouping of dikes with bridges and dams — structures which cross rivers — does argue for the interpretation that only cross-river dikes were included. But there is nothing in the legislative history which specifically supports this construction of the words of the statute. One could as reasonably argue that a cross-river dike is a dam and that there would be no reason to include both words if only one result was desired. The fact that some dikes — such as those involved in the Hudson Valley and Petterson cases — are part of landfull projects (other aspects of which require only the approval of the Corps of Engineers and the Secretary of the Army) is another argument for a restrictive interpretation of the word dike. But the barren legislative history would also support the argument that Congress intended to reserve for itself an approval role in projects of this sort where the dredge and fill is so extensive that dikes are the best method for stabilizing the resulting landfill. The legislative history of the Rivers and Harbors Appropriation Act of 1899 reveals the broad purpose Congress intended the statute to serve but it is silent as to how the requirement of Congressional consent for "dikes" is to assist in achieving this purpose.

Since the passage of the Rivers and Harbors Act of 1899 Congress has enacted legislation delegating the responsibility for approving bridges and some dams in interstate navigable waters. In the Federal Power Act of 1920, 41 Stat. 1063, authority to license the construction of dams for diverse purposes in all navigable waters was delegated to the Federal Power Commission, and subjected only to approval by the Corps of Engineers, 16 U.S.C. § 797(e). In the General Bridge Act of 1946, 60 Stat. 847, Congress granted its consent for all "bridges and approaches thereto over the navigable waters of the United States," the plans for which are approved by the Corps of Engineers and the Secretary of the Army, 33 U.S.C. § 525. The Secretary of the Army's — and the Corps of Engineers' — role under the 1946 act was later transferred to the Secretary of Transportation when that office was established by the Department of Transportation Act of 1966, 49 U.S.C. § 1651, et seq. The 1966 DOT Act also transferred to the Secretary of Transportation the Secretary of the Army's authority to approve causeways in navigable waters.⁹ The effect of all this legislation was to strip Congress of any ongoing approval role for structures in navigable waters except for the role it retained regarding dams not within the scope of F.P.C. authority and dikes and causeways.

Administrative practice under sections 9 and 10 of the Rivers and Harbors Appropriation Act of 1899 has never suffered from the uncertainties of interpretation brought to light in Hudson Valley and Petterson. The available evidence demonstrates that since the 1899 act's passage, the Secretary of the Army (formerly the Secretary of War) has consistently granted permits for the sort of landfill projects now at issue without seeking Congressional consent for the dikes involved. Congressional consent, however, has been sought in the comparatively fewer instances where total obstruction of navigation would result. For example section 3 of the Rivers and Harbors Act of 1946, 60 Stat. 637, permitted the Port of Sinslow, Oregon, to construct "dams or dikes for preventing the flow of the waters of the Sinslow River into Duncan Slough in Lone County, Oregon." Evidence of this administrative interpretation was presented in Hudson Valley and was presented in greater detail in Petterson. In Petterson the court's opinion takes note of four permits issued by the Secretary of the Army between 1937 and 1960 which authorized runway extensions into navigable waters for four airports: La Guardia, J.F.K. International, San Francisco International and Oakland International. The Supreme Court has held that administrative practice is entitled to great weight in interpreting section 10 of the Rivers and Harbors Act of 1899, Wisconsin v. Illinois, [2 ELR 10025] 278 U.S. 399 (1928). The utility of this rule of statutory construction is perhaps greatest where, as in this case, the statute was drafted by the same agency which is charged with its administration. But, as with legislative history and other extrinsic aides to statutory construction, administrative practice is usually only used to determine the meaning of an ambiguous statute. In Hudson Valley the 2nd Circuit affirmed the district court's determination that the language of the statute was clear, and that extrinsic aides to construction were unnecessary.

The dispute over the meaning of sections 9 and 10 of the Rivers and Harbors Act of 1899 is well framed by the court opinions in Hudson Valley and Petterson. Unless Petterson is reversed by the 9th Circuit the issue will ultimately have to be resolved by the Supreme Court or Congress. If Congress acts, hopefully it will be more successful in achieving clarity and conscious design than it was in 1899. But clarity should not be the only goal of new legislation. The environmentally destructive and economically unsound aspects of federal water resource policies have come under increasing criticism in recent years. The decisional process by which massive, permanent alterations are wrought in the nation's waterways is haphazard, considering the importance of the decisions which result.¹⁰ Should Congress decide to act in this area, more than a mere clarification of a 73 year old statute would be in order.

1. For an excellent summary of the political and administrative history of the Hudson River Expressway proposal see J. Sax, Defending the Environment, chap. 3 (1971).

2. Plaintiffs' motion for a preliminary injunction had been denied; the court held that it was unlikely that plaintiffs would succeed on the merits. Citizens Committee for the Hudson Valley v. Volpe, 297 F. Supp. 804 (S.D.N.Y. 1969). This decision was affirmed by the Court of Appeals without opinion. The judge who denied the preliminary injunction did not preside at the trial on the merits.

3. The suit was originally filed by an unincorporated citizens association, the Sierra Club and the Washington Sportsmans Council, Inc. but was dismissed for lack of standing, Citizens Committee for the Columbia River v. Resor, 1 ELR 20206 (D.Ore. Feb. 16, 1971). In its decision the district court relied on the opinion of the court of appeals in Sierra Club v. Hickel, 1 ELR 20015 (9th Cir., 1970), a case which disagreed with the 2nd Circuit's decision in Citizens Committee for the Hudson Valley, v. Volpe, 425 F.2d 97, 1 ELR 20006 (2nd Cir. 1970), on the issue of standing. This split may well have been the cause for the grant of certiorari in Sierra Club v. Morton, No. 939 (U.S. Feb. 22, 1971). See, Comment, 1 ELR 10002. Opponents of the Columbia River landfill reorganized and brought the suit in the name of landowners along the river — plaintiffs more acceptable to courts sitting in the 9th Circuit. See, Comment, Standing in the Ninth Circuit, 1 ELR 10058.

4. Letter from Lt. Col. A. MacKenzie to Senator Frye, pertinent part reprinted 32 Cong. Rec. 2297 (1899). Col. MacKenzie was Chief of Engineers. In his letter he states that "Sections 1 and 2 of the proposed Act [these were subsequently enacted as Sections 9 and 10 of the Rivers and Harbors Act of 1899] are intended to replace section 7 of the act of September 19, 1890, as amended by section 3 of the act of July 13, 1892, and I invite your attention to the accompanying brief, giving special reasons why this particular law should be revised and amended." Section 3 made no substantial change in section 7. The brief referred to is discussed infra.

5. In Cooley v. The Port Wardens, 12 How. 299 (1851), the Supreme Court consolidated earlier rulings on the subject and held that in the absence of conflicting legislation by Congress, States were entitled to enact legislation adopted to the local needs of interstate and foreign commerce. Later decisions modified Cooley by requiring the States to exercise their power reasonably, see Foster v. Master etc. of New Orleans, 94 U.S. 246 (1897).

6. This brief is on file in the library of the Lands and Natural Resources Division of the Department of Justice as part of the legislative history of the Rivers and Harbors Appropriation Act of 1899. A copy was submitted by the government as an appendix to a memorandum supporting its motion for dismissal in a case involving a dike planned for the Delaware River, Delaware v. Pennsylvania New York Central Transportation Co., ELR Dig. [12], doc. D.

7. The law on approval of structures in navigable waters had been further confused in a federal district court decision in 1891.In United States v. Keokuk & H. Bridge Co., 45 F.178 (S.D. Iowa, 1891) the court held that the Secretary of War could not order the removal of a bridge across the Mississippi River pursuant to a federal statute which appeared to delegate such authority to him, because the bridge had been constructed pursuant to an Act of Congress. In dicta the court stated that Congress could not delegate to the Secretary the general authority to approve bridges across navigable waters. The court did not limit this constitutional barrier to delegation to interstate navigable waters.

8. The full Senate's consideration of the amendment is described in the debate by Senator Pettigiew.

"… it seems to me a bad precedent that we should codify the laws upon this subject, bring it here at the last minute, at the end of the day, and without reading it, without having it printed and laid upon our desks, without any chance to consider or think about, practically knowing nothing about it, put it through as an amendment to an appropriation bill." 32 Cong. Rec. 2297 (1899).

9. 49 U.S.C. § 1655(g)(6) reads in pertinent part:

"(g) There are hereby transferred to and vested in the Secretary [of Transportation] all functions, powers, and duties of the Secretary of the Army and other officers and offices of the Department of the Army under —

* * *

(6) The following laws and provisions of law to the extent that they relate generally to the location and clearances of bridges and causeways in the navigable waters of the United States:

(A) Section 9 of the Act of March 3, 1899, as amended.

(B) The Act of March 23, 1906, as amended.

Since the Corps of Engineers is an office — and is staffed in part by officers of — the Department of the Army, see 10 U.S.C. § 3063, this statute transfers all Corps' authority over bridges and causeways relevant to the Hudson Valley and Petterson cases. Therefore, the district court's dicta in Hudson Valley that bridges over navigable waters still require Corps' approval supra at 20002 is incorrect.

The Secretary of Transportation has delegated much of his bridge and causeway authority to the Coast Guard, 49 C.F.R.I. 46.

10. The National Environmental Policy Act, 42 U.S.C. §§ 4321 and 4331 et seq., has had a significant and beneficial impact on this process. See e.g. Zabel v. Tabb, 430 F.2d 199, 1 ELR 20023 (5th Cir., 1970). The Water Resources Council's Proposed Principles and Standards for Planning Water and Related Land Resources, 36 Fed. Reg. 24144 (Dec. 21, 1971) also indicate an environmental awareness among water resource planners. But Congressional review of the basic division of authority in water resource planning could only help this nascent environmental concern.