Rivers & Harbors Appropriation Act

1890 & 1892 versions

In 1890, Congress enacted the first Rivers & Harbors Appropriation Act. Explained Justice Brown in Covington & C. Bridge Co, v. Com. of Kentucky, 154 U.S. 204 (1894):

"... Of recent years it has been the custom to obtain the consent of congress for the construction of bridges over navigable waters, and by the seventh section of the act of September 19, 1890 (26 Stat. 426, 454), it is made unlawful to begin the construction of any bridge over navigable waters until the location and plan of such bridge have been approved by the secretary of war, who has also been in frequent instances authorized to regulate the tolls upon such bridges where they connected two states...."

In Lake Shore & M S R Co. v. State of Ohio, 165 U.S. 365 (1897), Justice White reviewed the provisions of the Act regarding the question as to whether approval of a bridge project by the "Secretary of War" obviated a requirement for State approval of the same project:

"...The fourth section of the act relied on provides:

'That whenever the secretary of war shall have good reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed over any of the navigable water-ways of the United States is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw-opening or the draw-span of such bridge by rafts, stamboats, or other water craft, it shall be the duty of the said secretary, first giving the parties reasonable opportunity to be heard, to give notice to the persons or corporations owning or controlling such bridge so to alter the same as to render navigation through or under it reasonably free, easy and unobstructed; and in giving such notice he shall specify the changes required to be made, and shall prescribe in each case a reasonable time in which to make them. If at the end of such time the alteration has not been made, the secretary of war shall forthwith notify the United States district attorney for the district in which such bridge is situated, to the end that the criminal proceedings mentioned in the succeeding section may be taken.'

"The fifth section makes it a misdemeanor to willfully refuse to comply with the lawful orders of the secretary of war in the premises, and for the prosecution of the offender by proceedings instituted by the proper district attorney. The portion of the seventh section, which relates to the question in hand, is as follows:

'And it shall not be lawful hereafter to commence the construction of any bridge, bridge-draw, bridge piers and abutments, causeway or other works over or in any port, road, roadstead, haven, harbor, navigable river, or navigable waters of the United States, under any act of the legislative assembly of any state, until the location and plan of such bridge or other works have been submitted to and approved by the secretary of war, or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of the channel of said navigable water of the United States, unless approved and authorized by the secretary of war: provided, that this section shall not apply to any bridge, bridgedraw, bridge piers and abutments the construction of which has been heretofore duly authorized by law, or be so construed as to authorize the constrution of any bridge, draw bridge, bridge piers and abutments, or other works, under an act of the legislature of any state, over on in any stream, port, roadstead, haven or harbor, or other navigable water not wholly within the limites of such state.'

..."The mere delegation to the secretary of the right to determine whether a structure authorized by law has been so built as to impede commerce, and to direct, when reasonably necessary, its modification so as to remove such impediment, does not confer upon that officer power to give original authority to build bridges, nor does it presuppose that congress conceived that it was lodging in the secretary power to that end. When the distinction between an authorized structure so erected as to impede commerce and an unauthorized work of the same character is borne in mind, the fallacy of the contention relied on becomes apparent. The mere delegation of power to direct a change in lawful structures so as to cause them not to interfere with commerce cannot be construed as conferring on the officer named the right to determine when and where a bridge may be built...."

"...It follows, therefore, that, even conceding arguendo that the words 'navigable waters' as used in the act were intended to apply to streams wholly within a state, its obvious purpose was not to deprive the states of authority to grant power to bridge such streams, or to render lawful all bridges previously built without authority, but simply to create an additional and cumulative remedy to prevent such structures, although lawfully authorized, from interfering with commerce."

Justice Harlan, Cummings v. City of Chicago, 188 U.S. 410 (1903):

"By the 7th section of the river and harbor act of Congress approved September 19th, 1890, chap. 907, it was provided:

'That it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, or structure of any kind outside established harbor lines, or in any navigable waters of the United States where no harbor lines are or may be established, without the permission of the Secretary of War, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce, or anchorage of said waters, and it shall not be lawful hereafter to commence the construction of any bridge, bridge-draw, bridge piers and abutments, causeway, or other works over or in any port, road, roadstead, haven, harbor, navigable river, or navigable waters of the United States, under any act of the legislative assembly of any state, until the location and plan of such bridge or other works have been submitted to and approved by the Secretary of War, or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of the channel of said navigable water of the United States, unless approved and authorized by the Secretary of War: Provided, That this section shall not apply to any bridge, bridge-draw, bridge piers, and abutments the construction of which has been heretofore duly authorized by law, or be so construed as to authorize the construction of any bridge, drawbridge, bridge piers and abutments, or other works, under an act of the legislature of any state, over or in any stream, port, roadstead, haven, or harbor, or other navigable water not wholly within the limits of such state.' 26 Stat. at L. 426, 454.

As described by Justice Shiras Leovy v. U S, 177 U.S. 621 (1900), amendments in 1892 were as follows:

..."In the river and harbor act of 1892 (27 Stat. at L. pp. 88, 110, chap. 158), section 7 of the act of 1890 was amended and re-enacted as follows": (excerpted with changes referenced to prior section highlighted in purple)

"... or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of any port, roadstead, haven, harbor, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless approved and authorized by the Secretary of War: "