A Guide to the Rivers & Harbors Act Requirements, Process, and Compliance

The Rivers and Harbors Act (RHA) stands as a cornerstone of federal environmental regulation, safeguarding the nation's navigable waters and ensuring responsible development. This comprehensive guide delves into the intricacies of the RHA, providing a clear understanding of its regulatory scope, key sections, and compliance requirements. Learn about the Act's role in protecting water quality and aquatic ecosystems, as well as its interaction with other environmental regulations. Explore the permitting processes under Sections 10 and 13, and discover strategies for navigating the complexities of RHA compliance. With an emphasis on practical guidance and real-world examples, this guide serves as an essential resource for effectively managing projects while adhering to the RHA's environmental standards. Gain the knowledge and tools needed to confidently approach development activities in and around navigable waters, ensuring the preservation of these vital resources for generations to come.

GENERAL INFORMATION

Key Details of the Rivers & Harbors Act

Issuing Agency: United States Army Corps of Engineers

Year Established: 1899

Last Amended: 1986

Statutory Authority: Rivers and Harbors Appropriation Act of 1899

Primary Legal Reference: Section 10 of the Rivers and Harbors Appropriation Act, codified at 33 United States Code Section 403

What is the Rivers & Harbors Act?

The Rivers and Harbors Act is a federal law that regulates activities affecting navigable waters in the United States. It operates within the broader framework of the United States Army Corps of Engineers' (USACE) regulatory program, which aims to protect the nation's aquatic resources while allowing reasonable development. The Act primarily addresses issues related to navigability, water quality, and the environmental integrity of U.S. waters.

Enacted in 1899, the Rivers and Harbors Act is one of the oldest environmental laws in the United States. It has undergone several amendments, with the most recent significant changes occurring in 1986 [1]. The Act grants the USACE authority to regulate the construction of any structure or work within navigable waters, as well as the excavation, filling, or alteration of these waters.

The Rivers and Harbors Act achieves its goals by requiring permits for any work or structure that could obstruct navigability or alter the course, condition, or capacity of navigable waters. This permitting process allows the USACE to review proposed projects and ensure they comply with the Act's provisions.

The Act's jurisdiction is limited to "navigable waters," which are defined as waters subject to the ebb and flow of the tide and/or those that are presently used, have been used in the past, or may be used in the future to transport interstate or foreign commerce.

What does the Rivers & Harbors Act protect?

The Rivers and Harbors Act protects navigable waters in the United States. It safeguards these waters from obstructions, alterations, and degradation caused by human activities. The Act protects navigability by requiring permits for the construction of structures like dams, dikes, bridges, and causeways, as well as for dredging, filling, or modifying the channel of navigable waters. Additionally, the Act protects water quality and aquatic ecosystems by regulating the discharge of refuse into navigable waters and their tributaries [5].

[1] "Rivers and Harbors Appropriation Act of 1899." U.S. House of Representatives https://www.govinfo.gov/content/pkg/USCODE-2011-title33/pdf/USCODE-2011-title33-chap9.pdf [5] "Section 13 Rivers and Harbors Act Permits." U.S. Army Corps of Engineers https://www.nws.usace.army.mil/Missions/Civil-Works/Overview/Section-13-Rivers-and-Harbors-Act-Permits/

REGULATORY SCOPE & JURISDICTION

Regulated Activities, Entities & Prohibited Substances

The Rivers and Harbors Act (RHA) is a federal law that regulates activities affecting navigable waters in the United States. The Act applies to a wide range of industries and activities, including construction, dredging, filling, and the discharge of pollutants into navigable waters. The primary goal of the RHA is to protect the navigability of these waters and prevent obstructions that could impede navigation or harm the aquatic environment.1

The following activities and substances are prohibited under the Rivers and Harbors Act:2

  1. Unauthorized obstruction or alteration of navigable waters: No person or entity may construct, excavate, fill, or modify any navigable water of the United States without proper authorization from the U.S. Army Corps of Engineers (USACE).

  2. Discharge of refuse into navigable waters: It is unlawful to discharge or deposit any refuse matter, such as trash, debris, or waste, into navigable waters or their tributaries, or along their banks, without a permit from the USACE.

  3. Creation of obstructions to navigation: The construction of bridges, dams, dikes, or other structures that could obstruct or impede navigation is prohibited without the approval of the USACE and, in some cases, Congress.

  4. Unauthorized mining activities: Mining or excavation activities that could affect the navigability of waters or cause environmental harm are prohibited without proper permits and approvals.

These prohibitions are designed to maintain the navigability of U.S. waters, protect public health and safety, and preserve the quality of the aquatic environment. Violations of the RHA can result in civil and criminal penalties, as well as the requirement to restore affected waters to their original condition.

Key Sections of the Rivers & Harbors Act

Section 10

  • Purpose: Section 10 of the RHA regulates the construction of structures and the execution of work affecting navigable waters of the United States.3
  • Key Requirements: Any person or entity proposing to construct a structure, excavate, fill, or modify a navigable water must obtain a permit from the USACE before proceeding with the work.
  • Significance: Section 10 is critical for developers and consultants involved in projects that could impact navigable waters, as it establishes the primary permitting process for such activities.
  • Compliance Strategies: Early consultation with the USACE and thorough project planning can help ensure compliance with Section 10 requirements and streamline the permitting process.
  • Associated Processes: The USACE's Section 10 permitting process involves project evaluation, public notice and comment, and environmental review under the National Environmental Policy Act (NEPA).4

Section 13 - The Refuse Act

  • Purpose: Section 13, also known as the Refuse Act, prohibits the discharge of refuse into navigable waters or their tributaries without a permit from the USACE.5
  • Key Prohibitions: The Refuse Act makes it unlawful to deposit any refuse matter, such as trash, debris, or waste, into navigable waters or along their banks.
  • Significance: The Refuse Act is an important tool for preventing water pollution and maintaining the quality of the aquatic environment.
  • Compliance Strategies: Proper waste management, erosion control, and spill prevention measures can help projects avoid violations of the Refuse Act.
  • Associated Permits: The USACE may issue permits for the discharge of refuse under certain conditions, subject to environmental review and monitoring requirements.6

Relationship to Other Regulations & Agencies

The Rivers and Harbors Act interacts with several other federal, state, and local regulations and agencies:

  • Clean Water Act (CWA): The RHA and the CWA often overlap in their jurisdiction over navigable waters. Many activities regulated under Section 10 of the RHA also require permits under Section 404 of the CWA, which regulates the discharge of dredged or fill material into waters of the United States.7

  • National Environmental Policy Act (NEPA): Major federal actions, such as the issuance of RHA permits, may trigger environmental review requirements under NEPA. The USACE must consider the environmental impacts of permitted activities and, in some cases, prepare an Environmental Impact Statement (EIS).8

  • U.S. Coast Guard (USCG): The USCG is responsible for enforcing navigation and maritime safety regulations, which may intersect with RHA requirements for structures or activities affecting navigable waters.9

  • State and Local Agencies: Many states and local governments have their own regulations and permitting processes for activities affecting water resources. These requirements may be in addition to, or more stringent than, RHA provisions.

The U.S. Army Corps of Engineers is the primary federal agency responsible for implementing and enforcing the Rivers and Harbors Act. The USACE reviews permit applications, conducts environmental reviews, and monitors compliance with permit conditions. Other agencies, such as the U.S. Environmental Protection Agency (EPA) and the U.S. Fish and Wildlife Service (USFWS), may also be involved in the review and consultation process for RHA permits.

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The Rivers and Harbors Act (RHA) and its implementing regulations establish various standards and limitations to protect navigable waters and regulate activities within these waterways. The primary regulatory standards and limitations include:

  1. Permit Requirements: Section 10 of the RHA requires a permit from the U.S. Army Corps of Engineers (USACE) for any work or structure in, over, or under navigable waters of the United States.10 This includes activities such as dredging, filling, excavation, or the construction of piers, wharves, or other structures.11

  2. Obstruction Prohibition: The RHA prohibits the creation of any obstruction to the navigable capacity of waters of the United States unless authorized by Congress or permitted by the USACE.12 This provision aims to maintain the navigability of waterways and prevent interference with interstate commerce.

  3. Discharge Limitations: Section 13 of the RHA, known as the Refuse Act, prohibits the discharge of refuse matter into navigable waters or their tributaries without a permit from the USACE.13 This provision has been largely superseded by the Clean Water Act but remains in effect for certain non-point source discharges.

The USACE is responsible for implementing and enforcing these standards through its regulatory program.

Monitoring, Reporting & Recordkeeping Obligations

Under the Rivers and Harbors Act, regulated entities may be subject to various monitoring, reporting, and recordkeeping requirements as part of their permit conditions or as a result of enforcement actions. These obligations are designed to ensure compliance with the act and provide transparency to regulatory agencies and the public.

Monitoring Requirements: Depending on the nature of the permitted activity, the USACE may require permit holders to conduct regular monitoring of environmental conditions, such as water quality, sediment levels, or habitat impacts. The specific monitoring parameters, methods, and frequency will be determined on a case-by-case basis and specified in the permit conditions.14

Reporting Obligations: Permit holders may be required to submit periodic reports to the USACE detailing the status of their permitted activities, any monitoring results, and compliance with permit conditions. The frequency and content of these reports will be specified in the permit and may include:

  • Progress reports on construction activities
  • Monitoring data and analysis
  • Notifications of any non-compliance events or unanticipated impacts15

Recordkeeping Requirements: Regulated entities must maintain accurate records of their activities, monitoring data, and compliance efforts. These records must be kept for a specified period, typically a minimum of three years, and made available to the USACE upon request.16 Recordkeeping is essential for demonstrating compliance and facilitating agency inspections or audits.

The monitoring, reporting, and recordkeeping obligations under the RHA help ensure that regulated entities are operating in accordance with their permits and the law. These requirements also provide valuable information to regulatory agencies, allowing them to track compliance, identify potential issues, and take appropriate enforcement action when necessary.

Enforcement Actions & Penalties

Inspection and Audit Procedures

The U.S. Army Corps of Engineers (USACE) is responsible for monitoring compliance with the Rivers and Harbors Act through inspections and audits of regulated activities. The agency conducts several types of inspections:

  1. Routine Inspections: The USACE performs regular, scheduled inspections of permitted projects to verify compliance with permit conditions and regulatory requirements. The frequency of these inspections may vary depending on the nature and complexity of the project.

  2. Targeted Inspections: In some cases, the USACE may conduct targeted inspections based on specific concerns, such as a history of non-compliance, public complaints, or potential environmental impacts.

  3. Complaint-Driven Inspections: The USACE investigates complaints from the public or other agencies regarding potential violations of the RHA. If the complaint is substantiated, the agency may conduct an inspection to gather evidence and determine the appropriate enforcement action.

During inspections, the USACE will typically review permits, plans, and records, observe site conditions and activities, and document any violations or areas of concern. Regulated entities are required to cooperate with USACE inspectors and provide access to the site and relevant documents.17

Penalties for Violations

Violations of the Rivers and Harbors Act can result in various penalties, depending on the nature and severity of the offense. The table below summarizes the potential penalties:

Penalty TypeDescriptionExamples of ViolationsFactors Influencing Severity
Administrative PenaltiesNon-judicial penalties imposed by the USACE, such as cease and desist orders, permit modifications, or permit revocations.18Minor permit violations, failure to comply with administrative orders.Cooperation of the violator, history of compliance, environmental harm.
Civil FinesMonetary penalties assessed through civil litigation in federal court. Fines can range from $25,000 per violation per day to $250,000 per violation.19Unpermitted dredging or filling, failure to comply with permit conditions, obstruction of navigable waters.Extent and duration of the violation, environmental damage, economic benefit derived from the violation.
Criminal ChargesCriminal prosecution for knowing or willful violations of the RHA. Penalties can include fines of up to $500,000 and imprisonment for up to 5 years.20Intentional or reckless discharges of refuse, false statements or representations, tampering with monitoring equipment.Intent of the violator, extent of environmental harm, prior criminal history.

The USACE, in coordination with the Department of Justice, will consider various factors when determining the appropriate enforcement action and penalty, such as the severity of the violation, the violator's cooperation and compliance history, and the environmental and economic impacts of the violation.

Compliance Assistance & Regulatory Incentives

The U.S. Army Corps of Engineers (USACE) and other agencies offer various programs, resources, and incentives to help entities understand and comply with the Rivers and Harbors Act (RHA). These include:

Technical Assistance and Guidance

  • The USACE provides guidance documents, such as the "Regulatory Program Applicant Information Packet" and the "Permit Process Overview," to help regulated entities navigate the permitting process and understand the requirements of the RHA.
  • The agency also offers pre-application consultations to assist potential permit applicants in identifying project-specific requirements and developing complete applications.

Training and Outreach

  • The USACE conducts workshops, webinars, and public meetings to educate regulated entities and the public about the RHA and its compliance requirements.
  • The agency also participates in industry conferences and trade shows to provide information and answer questions about the RHA regulatory program.

Regulatory Incentives

  • The USACE offers several regulatory incentives to encourage compliance and promote environmental stewardship:
    • The Nationwide Permit (NWP) program streamlines the permitting process for certain categories of activities that have minimal individual and cumulative environmental impacts. Qualified projects can obtain authorization more quickly and with less paperwork than individual permits.21
    • The Regional General Permit (RGP) program provides a simplified permitting process for specific activities within a defined geographic area, such as a state or watershed. RGPs are developed in coordination with state and local agencies to address regional environmental concerns and regulatory requirements.22
    • The USACE also offers letters of permission (LOPs) for minor activities that are not covered by NWPs or RGPs but still have minimal environmental impacts. LOPs provide a streamlined authorization process for these projects.23

ADDITIONAL RESOURCES

Regulatory History & Upcoming Changes

The Rivers and Harbors Act, also known as the Rivers and Harbors Appropriation Act, was first enacted in 189924. The Act's primary purpose was to regulate activities that could obstruct or alter navigable waters in the United States, such as the construction of bridges, dams, and other structures25.

Over the years, several amendments have been made to the Rivers and Harbors Act to address evolving environmental concerns and regulatory needs:

  1. 1890 Amendment: Extended the Act's jurisdiction to include all tidal waters up to the mean high water line26.
  2. 1899 Amendment: Prohibited the unauthorized obstruction or alteration of any navigable water of the United States, including the construction of any bridge, dam, dike, or causeway27.
  3. 1910 Amendment: Authorized the Secretary of War (now the Secretary of the Army) to establish harbor lines and issue permits for activities within navigable waters28.
  4. 1968 Amendment: Expanded the Act's scope to include environmental considerations, such as the effects of proposed activities on fish and wildlife, water quality, and other ecological factors29.

In recent years, there have been discussions about potential changes to the Rivers and Harbors Act to streamline the permitting process and reduce regulatory burdens on businesses and individuals. However, as of July 2023, no significant amendments or regulatory changes have been enacted30.

To stay informed about potential changes to the Rivers and Harbors Act, interested parties should:

  • Monitor the Federal Register for proposed rules and regulatory updates31.

Additional Resources

  1. Full text of the Rivers and Harbors Act: https://www.law.cornell.edu/uscode/text/33/chapter-9 32

REFERENCES

  1. U.S. Army Corps of Engineers. (n.d.). Rivers and Harbors Act of 1899 https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Federal-Regulation/ ↩

  2. 33 U.S.C. §§ 401, 403, 404, 406, 407. ↩

  3. Rivers and Harbors Act of 1899, 33 U.S.C. § 403. ↩

  4. U.S. Army Corps of Engineers. (n.d.). Section 10 Permits https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Obtain-a-Permit/Section-10-Permits/ ↩

  5. Rivers and Harbors Act of 1899, 33 U.S.C. § 407. ↩

  6. U.S. Army Corps of Engineers. (n.d.). Section 13 Permits https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Obtain-a-Permit/Section-13-Permits/ ↩

  7. Federal Water Pollution Control Act, 33 U.S.C. § 1344. ↩

  8. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370m. ↩

  9. 14 U.S.C. § 2. ↩

  10. 33 U.S.C. § 403 ↩

  11. 33 C.F.R. § 322.2(b) ↩

  12. 33 U.S.C. § 403 ↩

  13. 33 U.S.C. § 407 ↩

  14. 33 C.F.R. § 325.4(a)(3) ↩

  15. 33 C.F.R. § 325.4(a)(4) ↩

  16. 33 C.F.R. § 325.4(a)(5) ↩

  17. 33 C.F.R. § 326.4 ↩

  18. 33 C.F.R. § 326.5 ↩

  19. 33 U.S.C. § 411 ↩

  20. 33 U.S.C. § 411 ↩

  21. 33 C.F.R. § 330 ↩

  22. 33 C.F.R. § 325.2(e)(2) ↩

  23. 33 C.F.R. § 325.2(e)(1) ↩

  24. Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 401-418 (2021). ↩

  25. U.S. Army Corps of Engineers. (n.d.). Rivers and Harbors Act of 1899 ↩

  26. Rivers and Harbors Act of 1890, ch. 907, 26 Stat. 426 (1890). ↩

  27. Rivers and Harbors Appropriation Act of 1899, ch. 425, 30 Stat. 1121 (1899). ↩

  28. Rivers and Harbors Act of 1910, ch. 382, 36 Stat. 593 (1910). ↩

  29. Rivers and Harbors Act of 1968, Pub. L. No. 90-483, 82 Stat. 731 (1968). ↩

  30. Congressional Research Service. (2022). The Rivers and Harbors Act: An Overview ↩

  31. Office of the Federal Register. (n.d.). Federal Register ↩

  32. Legal Information Institute. (n.d.). 33 U.S. Code Chapter 9 - PROTECTION OF NAVIGABLE WATERS AND OF HARBOR AND RIVER IMPROVEMENTS GENERALLY ↩

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A Note to Our Readers: We hope this guide is a valuable resource in helping you better understand the RHA. However, it's not a substitute for professional advice and doesn't cover every scenario. Always consult with regulatory bodies and professionals for the most current advice and project-specific guidance.