UNITED STATES v. PENNSYLVANIA INDUSTRIAL CHEMICAL CORP.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Argued March 27, 1973
Decided May 14, 1973
After the District Court refused respondent's offers of proof of reliance on Army Corps of Engineers regulations limiting violations to those impeding navigation, respondent was convicted of violating 13 of the Rivers and Harbors Act of 1899 by discharging industrial pollutants into a navigable river. The Court of Appeals reversed on the ground that 13 did not apply absent formalized permit procedures or, alternatively, that respondent should have been allowed to prove that it was affirmatively misled by the Corps of Engineers' regulations to believe that no permit was needed for these industrial pollutants. Held:
BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, WHITE, and MARSHALL, JJ., joined; in Part II of which BURGER, C. J., and STEWART and POWELL, JJ., joined; and in Part I of which BLACKMUN and REHNQUIST, JJ., joined BURGER, C. J., and STEWART and POWELL, JJ., filed a statement dissenting from Part I of the Court's opinion, post, p. 675. BLACKMUN and REHNQUIST, JJ., filed a statement dissenting from the judgment and Part II of the Court's opinion, post, p. 675.
William Bradford Reynolds argued the cause for the United States. With him on the briefs were Solicitor [411 U.S. 655, 656] General Griswold, Assistant Attorney General Frizzell, Deputy Assistant Attorney General Kiechel, Raymond N. Zagone, and James R. Moore.
Harold Gondelman argued the cause for respondent. With him on the brief was Herbert B. Sachs. *
[ Footnote * ] Briefs of amici curiae urging affirmance were filed by Milton A. Smith and Henry L. Pitts for the Chamber of Commerce of the United States; by David McNeil Olds and William Foster for the United States Steel Corp. et al.; and by Judd N. Poffinberger, Jr., for Jones & Laughlin Steel Corp.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
We review here the reversal by the Court of Appeals for the Third Circuit of respondent's conviction for violation of 13 1 of the Rivers and Harbors Act of 1899, [411 U.S. 655, 657] 30 Stat. 1152, 33 U.S.C. 407. Two questions are presented. The first is whether the Government may prosecute an alleged polluter under 13 in the absence of the promulgation of a formal regulatory-permit program by the Secretary of the Army. 2 The second is whether, if the prosecution is maintainable despite the nonexistence of a formal regulatory-permit program, this respondent was entitled to assert as a defense its alleged reliance on the Army Corps of Engineers' longstanding administrative construction of 13 as limited to water deposits that impede or obstruct navigation.
On April 6, 1971, the United States filed a criminal information against the respondent, Pennsylvania Industrial [411 U.S. 655, 658] Chemical Corp. (PICCO), alleging that on four separate occasions in August 1970 the corporation had discharged industrial refuse matters 3 into the Monongahela River 4 in violation of 13 of the 1899 Act. By its terms, 13 5 prohibits the discharge or deposit into navigable waters of "any refuse matter of any kind of description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state." The second proviso to 13 provides, however, that "the Secretary of the Army . . . may permit the deposit" 6 of refuse matter deemed by the Army Corps of Engineers not to be injurious to navigation, "provided application is made to [the Secretary] prior to depositing such material . . . ." 7 At trial, it was stipulated that PICCO operated a manufacturing plant on the bank [411 U.S. 655, 659] of the Monongahela River, that PICCO-owned concrete and iron pipes discharged the refuse matter into the river, and that PICCO had not obtained a permit from the Secretary of the Army prior to the discharges in question. PICCO argued, however, that the discharges did not violate 13 because (1) the liquid solution flowing from its pipes was "sewage" exempt from the statutory proscription; (2) the discharge did not constitute "refuse matter" within the meaning of 13 because it was not matter that would "impede navigation"; and (3) the term "refuse" as used in 13 must be defined in light of the water quality standards established pursuant to the Water Pollution Control Act of 1948 and its amendments. 8 In addition, PICCO sought to introduce evidence to show that its failure to obtain a 13 permit was excusable in this instance because prior to December 1970 9 the Army Corps of Engineers had not established a formal program for issuing permits under 13 and, moreover, because the Corps consistently construed 13 as limited to those deposits that would impede or obstruct navigation, thereby affirmatively misleading PICCO into believing that a 13 permit was not required as a condition to [411 U.S. 655, 660] discharges of matter involved in this case. The District Court rejected each of PICCO's arguments as to the scope and meaning of 13, disallowed PICCO's offers of proof on the ground that they were not relevant to the issue of guilt under 13, and instructed the jury accordingly. PICCO was convicted on all four counts and assessed the maximum fine of $2,500 on each count. 329 F. Supp. 1118 (WD Pa. 1971).
On appeal, the Court of Appeals for the Third Circuit affirmed the District Court's holdings as to the application of 13 to the matter discharged by PICCO into the river, 10 but rejected the District Court's conclusion that the 13 prohibition was operative in the absence of formalized permit procedures. 461 F.2d 468 (CA3 1972). The Court of Appeals reasoned that this interpretation was tantamount to reading 13 to be an absolute prohibition against the deposit of any "foreign substance" into the navigable waters of the country and this would have had such a "drastic impact . . . on the nation's economy even in 1899," id., at 473, that this interpretation could not reasonably be imputed to Congress. Instead, the Court of Appeals concluded that Congress intended to condition enforcement of 13 on the creation and operation of an administrative permit program. The Court of Appeals stated:
As an alternative ground for reversal, a majority of the Court of Appeals held that the District Court erred in disallowing PICCO's offer of proof that it had been affirmatively misled by the Corps of Engineers into believing that it was not necessary to obtain a 13 permit for the discharge of industrial effluents such as those involved in this case. If such facts were true, the Court of Appeals stated, it would be fundamentally unfair to allow PICCO's conviction to stand.
Thus, the Court of Appeals set aside PICCO's conviction and remanded the case to the District Court to give PICCO an opportunity to present the proffered proofs that had been disallowed by the District Court.
We granted the Government's petition for certiorari. 409 U.S. 1074 (1972). We agree with the Court of Appeals that the District Court's judgment of conviction must be reversed, but we cannot agree with the Court of Appeals' interpretation of 13 as foreclosing [411 U.S. 655, 662] prosecution in the absence of the existence of a formal regulatory-permit program.
Section 13 creates two separate offenses: the discharge or deposit of "any refuse matter" into navigable waters (with the streets-and-sewers exception); and the deposit of "material of any kind" on the bank of any navigable waterway or tributary where it might be washed into the water and thereby impede or obstruct navigation. La Merced, 84 F.2d 444, 445 (CA9 1936); United States v. Consolidation Coal Co., 354 F. Supp. 173, 175 (ND W. Va. 1973). The second proviso to 13 authorizes the Secretary of the Army to exempt certain water deposits from the prohibitions of 13, "provided application is made to him prior to depositing such material." In exercising that authority, the proviso requires the Secretary to rely on the judgment of the Chief of Engineers that anchorage and navigation will not be injured by such deposits. But, even in a situation where the Chief of Engineers concedes that a certain deposit will not injure anchorage and navigation, the Secretary need not necessarily permit the deposit, for the proviso makes the Secretary's authority discretionary - i. e., it provides that the Secretary "may permit" the deposit. The proviso further requires that permits issued by the Secretary are to prescribe limits and conditions, any violation of which is unlawful. It is crucial to our inquiry, however, that neither the proviso nor any other provision of the statute requires that the Secretary prescribe general regulations or set criteria governing issuance of permits.
Thus, while nothing in 13 precludes the establishment of a formal regulatory program by the Secretary, it is equally clear that nothing in the section requires the establishment of such a program as a condition to rendering 13 operative. United States v. Granite State Packing [411 U.S. 655, 663] Co., 470 F.2d 303, 304 (CA1 1972). In contrast, other provisions of the Rivers and Harbors Act of 1899, 11 do include a requirement for regulations. Consequently, we disagree with the Court of Appeals that 13 itself precludes prosecution for violation of its provisions in the absence of a formal regulatory-permit program.
Similarly, there is nothing in the legislative history of 13 that supports the conclusion of the Court of Appeals that such a requirement is to be read into the section. Section 13 is one section of a comprehensive law enacted in 1899 to codify pre-existing statutes designed to protect and preserve our Nation's navigable waterways. United States v. Standard Oil Co., 384 U.S. 224, 226 (1966).
The history of the 1899 Act begins with this Court's decision in 1888 in Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 . The Court there held that there was no federal common law prohibiting obstructions and nuisances in navigable waters. In response to that decision, Congress passed a series of laws that were later reenacted as the Rivers and Harbors Act of 1899. Section 6 of the first such law, the Rivers and Harbors Act of 1890, provided in part:
Thus, the Court of Appeals' interpretation of 13 has no support in the predecessor statutes of 13. Plainly, neither of the predecessor statutes contemplated that application of their operative provisions would turn on the existence of a formal regulatory program. On the contrary, 6 of the 1890 Act provided only that its absolute ban on the discharge of enumerated substances could not be construed "to prevent" the Secretary of War from granting, in his discretion, a permit to deposit such material into navigable waters. And 6 of the 1894 Act contained no direct permit authorization whatsoever. 17 [411 U.S. 655, 667]
We turn, then, to the Court of Appeals' assertion that its conclusion is supported by later congressional enactments in the water quality field. In this regard, the Court of Appeals placed primary reliance 18 on the 1965 [411 U.S. 655, 668] and 1970 amendments to the Water Pollution Control Act of 1948 - the Water Quality Act of 1965, 79 Stat. 903, and the Water Quality Improvement Act of 1970, 84 Stat. 91. 19 The Court of Appeals concluded that since the 1965 and 1970 Acts contemplated that discharges must meet minimum water quality standards, as set forth by state agencies, it would be "fundamentally inconsistent" to read 13 as imposing a ban on all pollutant discharges. 461 F.2d, at 473. We cannot agree. The Water Quality Acts were a congressional attempt to enlist state and local aid in a concentrated water pollution control and abatement program. The legislative directive of those statutes was that state and local officials, working in cooperation with federal officials, establish minimum water quality standards and create pollution prevention and abatement programs. Nothing in the statutes or their parent statute operated to permit discharges that would otherwise be prohibited by 13, and in each case Congress specifically provided that the new statutes were not to be construed as "affecting or impairing the provisions of [ 13 of the Rivers and Harbors Act of 1899]." 20
Indeed, the water quality legislation expressly complements the provisions of 13 of the 1899 Act. Section 13, although authorizing the Secretary of the Army to permit certain water deposits, contains no criteria to be followed by the Secretary in issuing such permits. The water quality legislation, on the other hand, calls for [411 U.S. 655, 669] the setting of minimum water quality standards, and once such standards are established, federal permit authority, such as that vested in the Secretary of the Army by the second proviso to 13, is specifically limited to that extent - i. e., a permit could not be granted by the Secretary unless the discharge material met the applicable standards. Water Quality Improvement Act of 1970, 103, 84 Stat. 107. In essence, therefore, the Water Quality Acts placed a limitation on the Secretary's permit authority without undermining the general prohibitions of 13. See United States v. Maplewood Poultry Co., 327 F. Supp. 686, 688 (Me. 1971); United States v. United States Steel Corp., 328 F. Supp. 354, 357 (ND Ind. 1970); United States v. Interlake Steel Corp., 297 F. Supp. 912, 916 (ND III. 1969).
We, therefore, find nothing fundamentally inconsistent between 13 and the subsequent federal enactments in the water quality field. Section 13 declares in simple absolutes that have been characterized as "almost an insult to the sophisticated wastes of modern technology" 21 that "[i]t shall not be lawful" to discharge or deposit into navigable waters of the United States "any refuse matter of any kind or description whatever" except as permitted by the Secretary of the Army. In enacting subsequent legislation in the water quality field, Congress took special precautions to preserve the broad prohibitions of 13 and in no way implied that those prohibitions were operative only under a formal regulatory-permit program. Similarly, nothing in the language or history of 13 conditions enforcement of its prohibitions on the establishment of a formal regulatory-permit program and, as we have said in the past, "the history of this provision and of related [411 U.S. 655, 670] legislation dealing with our free-flowing rivers `forbids a narrow, cramped reading' of 13." United States v. Standard Oil Co., 384 U.S., at 226 ; United States v. Republic Steel Corp., 362 U.S. 482, 491 (1960).
We turn, therefore, to the Court of Appeals' alternative ground for reversing PICCO's conviction, namely, that in light of the longstanding, official administrative construction of 13 as limited to those water deposits that tend to impede or obstruct navigation, PICCO may have been "affirmatively misled" into believing that its conduct was not criminal. 22 We agree with the Court of Appeals that PICCO should have been permitted to present relevant evidence to establish this defense.
At the outset, we observe that the issue here is not whether 13 in fact applies to water deposits that have no tendency to affect navigation. For, although there was much dispute on this question in the past, 23 in [411 U.S. 655, 671] United States v. Standard Oil Co., supra, we held that "the `serious injury' to our watercourses . . sought to be remedied [by the 1899 Act] was caused in part by obstacles that impeded navigation and in part by pollution," and that the term "refuse" as used in 13 "includes all foreign substances and pollutants . . . ." 384 U.S., at 228 -229, 230. 24 See also Illinois v. City of Milwaukee, 406 U.S. 91, 101 (1972). Since then, the lower courts have almost universally agreed, as did the courts below, that 13 is to be read in accordance with its plain language as imposing a flat ban on the unauthorized deposit of foreign substances into navigable waters, regardless of the effect on navigation. See, e. g., United States v. Granite State Packing Co., 343 F. Supp. 57, aff'd, 470 F.2d 303 (CA1 1972); United States v. Esso Standard Oil Co. of Puerto Rico, 375 F.2d 621 (CA3 1967); United States v. Consolidation Coal Co., 354 F. Supp. 173 (ND W. Va. 1973); United States v. Genoa Cooperative Creamery Co., 336 F. Supp. 539 (WD Wis. 1972); United States v. Maplewood Poultry Co., 327 F. Supp. 686 [411 U.S. 655, 672] (Me. 1971); United States v. United States Steel Corp., 328 F. Supp. 354 (ND Ind. 1970); United States v. Interlake Steel Corp., 297 F. Supp. 912 (ND Ill. 1969); contra, Guthrie v. Alabama By-Products Co., 328 F. Supp. 1140 (ND Ala. 1971), aff'd, 456 F.2d 1294 (CA5 1972).
Nevertheless, it is undisputed that prior to December 1970 the Army Corps of Engineers consistently construed 13 as limited to water deposits that affected navigation. Thus, at the time of our decision in Standard Oil, the published regulation pertaining to 13 read as follows:
Of course, there can be no question that PICCO had a right to look to the Corps of Engineers' regulations for guidance. The Corps is the responsible administrative agency under the 1899 Act, and "the rulings, interpretations and opinions of the [responsible agency] . . ., while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which . . . litigants may properly resort for guidance." Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 499 (1958). Moreover, although the regulations did not of themselves purport to create or define the statutory offense in question, see United States v. Mersky, 361 U.S. 431 (1960), it is certainly true that their designed purpose was to guide persons as to the meaning and requirements of the statute. Thus, to the extent that the regulations deprived PICCO of fair warning as to what conduct the Government intended to make criminal, we think there can be no doubt that traditional notions of fairness inherent in our system of criminal justice prevent the Government from proceeding with the prosecution. See Newman, Should Official Advice Be Reliable? - Proposals as to Estoppel and Related Doctrines in Administrative Law, 53 Col. L. Rev. 374 (1953); Note, Applying Estoppel Principles in Criminal Cases, 78 Yale L. J. 1046 (1969).
The Government argues, however, that our pronouncement in Standard Oil precludes PICCO from asserting [411 U.S. 655, 675] reliance on the Corps of Engineers' regulations and that, in any event, the revised regulation issued in 1968, when considered in light of other pertinent factors, 26 was not misleading to persons in PICCO's position. But we need not respond to the Government's arguments here, for the substance of those arguments pertains, not to the issue of the availability of reliance as a defense, but rather to the issues whether there was in fact reliance and, if so, whether that reliance was reasonable under the circumstances - issues that must be decided in the first instance by the trial court. At this stage, it is sufficient that we hold that it was error for the District Court to refuse to permit PICCO to present evidence in support of its claim that it had been affirmatively misled into believing that the discharges in question were not a violation of the statute.
Accordingly, the judgment of the Court of Appeals is modified to remand the case to the District Court for further proceedings consistent with this opinion.
MR. JUSTICE BLACKMUN and MR. JUSTICE REHNQUIST agree with Part I, but believing that the Court's opinion and judgment in United States v. Standard Oil Co., [411 U.S. 655, 676] 384 U.S. 224 (1966), make absolutely clear the meaning and reach of 13 with respect to PICCO's industrial discharge into the Monongahela River; that subsequent reliance upon any contrary administrative attitude on the part of the Corps of Engineers, express or by implication, is unwarranted; and that the District Court was correct in rejecting PICCO's offer of proof of reliance as irrelevant, would reverse the Court of Appeals with directions to reinstate the judgment of conviction.
[ Footnote 2 ] A formal permit program under 13 was established subsequent to the dates of the alleged violations involved in this case. See n. 9, infra. On October 18, 1972, Congress passed a comprehensive piece of legislation providing for national water quality standards and for a federal permit program relating to the discharge of pollutants into navigable waters. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816. Section 402 of the 1972 Act, 33 U.S.C. 1342, prohibits further issuance of permits under 13 of the Rivers and Harbors Act of 1899 and designates the Administrator of the Environmental Protection Agency as the exclusive authority to permit discharges of pollutants into navigable waters.
[ Footnote 3 ] The refuse matters were identified as "iron, aluminum, and compounds containing these chemicals, and chlorides, phosphates, sulfates and solids." App. 3.
[ Footnote 4 ] The Monongahela River is a 128-mile-long, navigable waterway that flows through western Pennsylvania and northern West Virginia.
[ Footnote 5 ] Section 13 is sometimes referred to as the "Refuse Act of 1899," but that term is a post-1970 label not used by Congress, past or present. Moreover, some authors use the term to refer only to 13, see, e. g., Note, The Refuse Act of 1899: New Tasks for an Old Law, 22 Hastings L. J. 782 (1971), while others use it to refer to the entire Rivers and Harbors Act of 1899, see, e. g., Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U. Pa. L. Rev. 761, 766 (1971).
[ Footnote 6 ] It has been suggested that since 13 prohibits the "discharge, or deposit" of refuse but authorizes the Secretary to permit only "the deposit" of refuse, it may be appropriate to distinguish between a "discharge" and a "deposit" and hold that only a "deposit" of refuse may be permitted by the Secretary. Hearings before the Subcommittee on the Environment of the Senate Committee on Commerce, 92d Cong., 1st Sess., 31 (1971). However, we find no support for such a distinction in either the Act itself or its legislative history.
[ Footnote 7 ] The Secretary's authority to issue permits under 13 terminated on October 18, 1972. See n. 2, supra.
[ Footnote 8 ] 62 Stat. 1155, as amended, Act of July 17, 1952, c. 927, 66 Stat. 755; Water Pollution Control Act Amendments of 1956, 70 Stat. 498; Federal Water Pollution Control Act Amendments of 1961, Pub. L. 87-88, 75 Stat. 204; Water Quality Act of 1965, Pub. L. 89-234, 79 Stat. 903; Clean Water Restoration Act of 1966, Pub. L. 89-753, 80 Stat. 1246; Water Quality Improvement Act of 1970, Pub. L. 91-224, 84 Stat. 91.
[ Footnote 9 ] On December 23, 1970, the President announced the establishment of a formal 13 permit program. Executive Order 11574, 35 Fed. Reg. 19627 (Dec. 25, 1970). The Corps of Engineers followed on December 30, 1970, with proposed regulations. 35 Fed. Reg. 20005 (Dec. 31, 1970). Final regulations implementing the President's program became effective April 7, 1971. 33 CFR 209.131 (1972). That program, with certain changes, has now become part of the new permit program authorized by 402 of the Federal Water Pollution Control Act Amendments of 1972. See n. 2, supra.
[ Footnote 10 ] This part of the Court of Appeals' decision is not before us for review. See Brennan v. Arnheim & Neely, 410 U.S. 512, 516 (1973); NLRB v. International Van Lines, 409 U.S. 48, 52 n. 4 (1972).
[ Footnote 11 ] See 11 of the Act, 33 U.S.C. 404, which instructs the Secretary of the Army to establish harbor lines beyond which works may not be extended or deposits made "except under such regulations as may be prescribed from time to time by him." See also 4 of the Rivers and Harbors Act of 1905, 33 Stat. 1147, 33 U.S.C. 419, authorizing regulations regarding the transportation and dumping of dredging material.
[ Footnote 12 ] This section of the 1894 Act, as well as 6 of the 1890 Act, was modeled after statutes passed in 1888 and 1886 pertaining only to New York Harbor. See United States v. Standard Oil Co., 384 U.S. 224, 226 -228 (1966).
[ Footnote 13 ] Act of June 3, 1896, c. 314, 2, 29 Stat. 234.
[ Footnote 14 ] H. R. Doc. No. 293, 54th Cong., 2d Sess. (1897).
[ Footnote 15 ] Ibid. See 33 U.S.C. 414.
[ Footnote 16 ] 32 Cong. Rec. 2297 (1899).
[ Footnote 17 ] It is true that 6 of the 1894 Act prohibited discharges and deposits only "elsewhere than within the limits defined and permitted by the Secretary of War," but that language did not contemplate the establishment of a formal regulatory program by the Secretary. Section 6 of the 1890 Act granted the Secretary discretionary authority [411 U.S. 655, 667] to permit nonimpeding discharges and nothing in the 1894 Act purported to curtail that earlier grant of authority to the Secretary. Thus, the reference in the 1894 provision to "limits defined and permitted by the Secretary" refers merely to the Secretary's existing permit authority under the 1890 provision.
[ Footnote 18 ] Inferentially, the Court of Appeals also referred to 4 of the Rivers and Harbors Act of 1905, 33 U.S.C. 419. See 461 F.2d 468, 475 n. 7. But that provision, which was originally proposed as an amendment to 13 of the 1899 Act and clearly contemplated the establishment of a formal regulatory program by the Secretary (although it did not require that such a program be established), provides no support for the Court of Appeals' interpretation of 13. On the contrary, the existence of 4 of the 1905 Act tends to confirm the conclusion that 13 is not conditioned on the establishment of a formal regulatory program. For the legislative history of 4 explains that it was deemed desirable to give the Secretary authority to promulgate general permissive dumping regulations as to some bodies of water (such as New York and Boston Harbors) because a large amount of illegal dumping was going on in these waters at night and it was "almost impossible to detect" the violators, thereby making it "impossible to secure convictions." 39 Cong. Rec. 3078 (1905). A formal regulatory program, in other words, was the lesser of two evils as to these bodies of water since there were insufficient facilities and personnel to effectively enforce the general prohibitions of 13. The implication is clear, however, that had the persons responsible for the unauthorized dumping been discovered, prosecution for violation of 13 would have been the appropriate remedy, even though then, as at the time of the present offenses, there existed no formal regulatory program under 13.
No explanation was given by Congress for its ultimate decision to codify 4 of the 1905 Act separately rather than as an amendment to 13. Possibly, Congress hoped that such regulations would be issued sparingly so as not to eviscerate the broad antidumping prohibitions of 13. In any event, the Secretary's discretionary regulatory-program authority under 4 of the 1905 Act certainly cannot be read into 13 as an operative requirement, and absent establishment of a regulatory program under 4 of the 1905 Act [411 U.S. 655, 668] as to a particular body of water, the prohibitions of 13 remain intact and completely enforceable.
[ Footnote 19 ] These statutes are to a large extent superseded by the 1972 amendments to the Water Pollution Control Act. See n. 2, supra.
[ Footnote 20 ] See 11 of the Water Pollution Control Act of 1948, 62 Stat. 1161, as amended in 1956, 70 Stat. 507, as further amended by the Water Quality Act of 1965, 79 Stat. 903, and as further amended by the Water Quality Improvement Act of 1970, 84 Stat. 113.
[ Footnote 21 ] Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U. Pa. L. Rev. 761, 766 (1971).
[ Footnote 22 ] It was conceded for purposes of this case that the refuse matter involved was not of a nature that would impede or obstruct navigation. 461 F.2d, at 478. See also n. 3, supra.
[ Footnote 23 ] The seeming ambiguity of the language of 13 and the sparse legislative history of that provision caused the lower courts to disagree over the years as to the proper scope of 13. The second clause of 13, which prohibits the deposit of refuse on the "bank" of any navigable water or tributary where such refuse may be washed into the water, is expressly limited to deposits that shall or may impede or obstruct navigation. The first clause of 13, however, which is set off from the second clause by a semicolon, contains no language of its own limiting its prohibition to navigation-impeding deposits. Similarly, in regard to the two predecessor statutes of 13, 6 of the 1890 Act was expressly limited to navigation-impending deposits, but 6 of the 1894 Act was not. And the legislative history of 13 and its predecessor statutes is hardly conclusive on this issue. But see Comment, Discharging New Wine into Old Wineskins: The Metamorphosis of the Rivers and Harbors Act of 1899, 33 U. Pitt. L. Rev. 483 (1972).
See as construing 13 to be applicable to all water deposits regardless of their tendency to obstruct or impede navigation, La Merced, 84 F.2d 444 (CA9 1936); The President Coolidge, 101 F.2d 638 (CA9 1939); United States v. Ballard Oil Co. of Hartford, 195 F.2d 369 (CA2 1952). See as construing 13 to be applicable only to navigation-impeding deposits, United States v. Crouch (1922) (unreported, see United States v. Standard Oil Co., 384 U.S., at 229 n. 5); Warner-Quinlan Co. v. United States, 273 F. 503 (CA3 1921); Nicroli v. Den Norske Afrika-Og Australielinie, 332 F.2d 651 (CA2 1964).
[ Footnote 24 ] Standard Oil involved an accidental discharge of aviation gasoline into navigable waters. The District Court had made the finding that the gasoline "was not such as to impede navigation." United States v. Standard Oil Co., No. 291, O. P. 1965, App. 8-11.
[ Footnote 25 ] Section 4 of the Rivers and Harbors Act of 1905 authorizes the Secretary of the Army to prescribe regulations to govern the transportation and dumping into navigable waters of dredgings, earth, garbage, and other refuse matter whenever in his judgment such regulations are required "in the interest of navigation." 33 U.S.C. 419. Thus, the reference to that provision in the Corps' revised regulation did not signify a change in the Corps' construction of 13.
[ Footnote 26 ] The other factors that the Government argues must be taken into consideration are post-1968 regulations issued with respect to other sections of the 1899 Act and with respect to other acts, and certain Corps of Engineers press releases and periodic publications. Brief for United States 35-38. [411 U.S. 655, 677]