Refuse Act

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The United States Refuse Act of 1899 is a long-ignored federal statute. It prohibits all industrial discharges into bodies of water. Theoretically, every industrial discharge since 1899 has been a crime.

Refuse Act (33 USC 407), is section 13 of the Rivers and Harbors Act of 1899.

The 1899 Refuse Act is a powerful, but little used, weapon in the Federal arsenal of water pollution control enforcement legislation. Section 13 of the Act (Title 33, United States Code, section 407) prohibits anyone, including any individual, corporation, municipality, or group, from throwing, discharging, or depositing any refuse matter of any kind or any type from a vessel or from a shore-based building, structure, or facility into either (a) the nation's navigable rivers, lakes, streams, and other navigable bodies of water, or (b) any tributary to such waters, unless he has first obtained a permit to do so. Navigable water includes water sufficient to float a boat or log at high water. This section of the Act applies to inland waters, coastal waters, and waters that flow across the boundaries of the United States and Canada and Mexico.

Violations of the Refuse Act are subject to criminal prosecution and penalties of a fine of not more than $2,500 nor less than $500 for each day or instance of violation, or imprisonment for not less than 30 days nor more than 1 year, or both a fine and imprisonment (Title 33, United States Code, Section 411). A citizen who informs the appropriate United States attorney about a violation and gives sufficient information to lead to conviction is entitled to one-half of the fine set by the court.

The Justice Department recently issued a policy statement to United States Attorneys, concerning the enforcement of the Refuse Act. It instructed them not to use the act as a pollution abatement statute in competition with the Federal Water Pollution Control Act or with state pollution abatement procedures. It should, in the Department's opinion, only be used to supplement them.

In February, 1974, a precedent setting case was ruled on by U. S. District Court judge Vincent P. Biunno. This case was based on photographic and water sample evidence gathered from 1971 to 1973 by Fairleigh Dickinson University (Madison, New Jersey) undergraduate students, Paul Lander and William E. Marks. The evidence documented illegal water pollution discharges by the Whippany Paper Board Company into the navigable Whippany River of New Jersey, a tributary to the Passaic River. The two students submitted their evidence to Carl Woodward III, head of the United States Attorney's pollution control unit located in Newark, New Jersey. This was the first test case of the newly passed 1972 Federal Water Pollution Control Act (FWPCA). Since the students gathered and submitted a large portion of their evidence under the 1899 Refuse Act prior to passage of the FWPCA, the United States Attorney's office along with the federal grand jury, filed a 20 count indictment against the polluter by applying the FWPCA and Refuse Act simultaneously. After Whippany Paper Board pled guilty to 14 counts, Federal Court Judge Vincent P. Biunno awarded 50% of the portion of the fine based on the Refuse Act to the two students in April 1974. As a result, this case established the precedent that the FWPCA did not supersede the Refuse Act, thereby protecting the application of the citizen reward provision of the Refuse Act for the report and documentation of water pollution into the navigable waters of the United States.

Today, the FWPCA and Refuse Act, remain as viable forms of federal legislation. However, they are usually applied separately and not jointly in the prosecution of water polluters. Several federal agencies still use the Refuse Act for prosecution of water polluters, as well as individual citizens and organizations such as the Waterkeeper Alliance.