Swygert, Chief Judge, and Cummings and Stevens, Circuit Judges.
This criminal prosecution was based upon a 2-count information alleging violations of Sections 13 and 16 of the Rivers and Harbors Act of 1899 (33 U.S.C. §§ 407 and 411). Count I alleged that defendant discharged refuse matter from a drainpipe into the east branch of the Grand Calumet River on October 11, 1967. Count II alleged that the defendant deposited refuse matter from another drainpipe into the same river on the same date. The refuse matter described in Count I consisted of a "red-brown particulate sediment" and in Count II, of an "oily substance." After a jury verdict of guilty, the district court assessed the maximum fine of $2,500 on each count, and defendant has appealed from the judgment imposing those fines. The district court's memorandum opinion is reported at 328 F. Supp. 354 (N.D.Ind. 1970).
In this Court defendant admits the discharges in question. In support of reversal it urges the non-applicability of the 1899 Act to the discharges because they did not affect the navigability of the receiving stream and because they occurred after enactment of The Water Quality Act of 1965, the contrariety of its conviction to Congressional intent and to due process in the absence of a regulatory permit program, and the erroneousness of certain of the trial court's evidentiary rulings. We affirm.
Applicability of Section 13 to Non-Navigation-Threatening Refuse Discharges
Defendant's principal argument is that Section 13 of the Rivers and Harbors Act of 1899 does not cover these discharges of effluent waste into the Grand Calumet River on the ground that the statute requires an effect on navigation. At the trial, the Government made no attempt to prove that these discharges impeded or obstructed navigation or had a tendency to do so. It contended, as it contends here, that the first clause of Section 13 applies to the present discharges regardless of an effect on navigation.
The statute in question has lately become known as the Refuse Act of 1899. Section 13 thereof provides:
"It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provide further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful." (33 U.S.C. § 407)*fn1
The first offense created by this statute, the offense for which defendant was prosecuted, consists in discharging into navigable waters "any refuse matter of any kind or description whatever." The sole exception to the refuse matter coverage is for municipal sewage.*fn2 The second portion of the statute addresses the depositing of "material of any kind in any place on the bank of any navigable water * * * where the same shall be liable to be washed into such navigable water * * *." Such depositing, however, is an offense only if thereby "navigation shall or may be impeded or obstructed." Although defendant contends Congress intended that this navigational effect limitation also apply to the refuse discharge prohibition of the first portion of the statute, we do not understand it to contend that the adverbial phrase embodying that limitation can properly be read to modify the definition of the first offense. Grammatically it cannot.
Section 13 contains two provisos, only the second of which is pertinent here. That proviso allows "the deposit of any material above mentioned in navigable waters" if upon prior application to him the Secretary of the Army grants a permit therefor. The criterion for granting the permit is the Chief of Engineers' judgment that "anchorage and navigation will not be injured" by the deposit. The final proviso makes sense only if it is interpreted to apply to both the first and the second offenses enunciated by the statute. There seems to be no question but that it applies to the second portion. Since the first clause is the one referring explicitly to a "deposit * * * into any navigable water," the proviso fits it most comfortably. If it did not apply to the first clause, no discharge of any refuse matter could ever avoid criminality.
On its face, therefore, the first part of Section 13 proscribes the discharge of "any refuse matter of any kind or description whatever" into navigable waters without a permit. The words of the statute do not impose any limitation of an effect on navigation or tendency to affect navigation on the refuse matter covered. Defendant's argument for reading in this qualification relies on legislative history as indicative of a Congressional concern only with discharges "which tend to impair navigability." We think the statute is plain on its face, but since words are necessarily inexact and ambiguity is a relative concept, we now turn to the legislative history, mindful that the plainer the language, the more convincing contrary legislative history must be.
Although statutes dealing with discharges in the navigable waters of New York Harbor were enacted in 1886*fn3 and 1888,*fn4 the first statute of general applicability was enacted in 1890. Section 6 of this statute made it unlawful to empty either from a vessel or from shore "any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind, into any port, road, roadstead, harbor, haven, navigable river or navigable waters of the United States which shall tend to impede or obstruct navigation * * *" (emphasis supplied). It also prohibited the deposit of such materials on the bank of any navigable waters where it was liable to be washed into the waters and "whereby navigation shall or may be impeded or obstructed." A proviso excepted deposits under a permit from the Secretary of War designating a place where the deposit would not obstruct navigation. 26 Stat. 453.
In 1894 Congress again legislated on the subject of discharges into navigable waters. Section 6 of the Rivers and Harbors Act of that year made it unlawful to discharge "by any process or in any manner, ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state in the waters of any harbor or river of the United States * * * elsewhere than in the limits defined and permitted by the Secretary of War." 28 Stat. 363. The striking difference between the 1890 and 1894 Acts is the absence of any navigation-threatening qualification in the latter. Moreover, Section 6 of the 1894 Act has a shortened list of enumerated substances and introduced the exception for municipal sewage.
Defendant argues that the absence of any explicit qualification in the 1894 Act relating to navigational impairment does not mean that Congress intended to abandon that qualification. It seems true, as defendant suggests, that the 1894 Act was precipitated by the Corps of Engineers' complaint that the 1890 Act was difficult to enforce because it contained no provision for an in rem proceeding against a vessel or for liability of the master or engineer; the 1890 Act applied only to persons or corporations owning the vessel.*fn5 In response, Congress drew on Sections 2 and 4 of the 1888 New York Harbor Act in enacting Sections 7 and 8 of the 1894 Act to supply the lacking features. However, it also borrowed from the New York Harbor Act to enact the substantive provision of the 1894 Act, Section 6, quoted in part above. It has been suggested that this was "redundant" because the Corps only sought additional liability provisions and the 1890 Act had already delineated the substantive offense.*fn6 Moreover, since the 1894 Act was appended to the annual river and harbor appropriation bill, it is suggested that there was a limited opportunity for debate and Congress was assured that the bill only prevented discharges which would affect navigation.*fn7 Although this is all very plausible, it is not a truly satisfactory basis for assuming Congressional oversight of the differences between the 1890 and 1894 statutes. Most probably Congress was primarily concerned with protecting the navigability of navigable waterways, but that is not to say it was exclusively so concerned. As the Supreme Court has said, "* * * the 'serious injury' to our watercourses * * * sought to be remedied was caused in part by obstacles that impeded navigation and in part by pollution * * *." United States v. Standard Oil Co., 384 U.S. 224, 228-229, 86 S. Ct. 1427, 1429, 16 L. Ed. 2d 492. But even if Congress was solely preoccupied with protecting navigability, that would not negate Congressional resolve to forbid the discharges of the listed and other foreign substances regardless of their apparent effect on navigation unless specially permitted. To say that Congress was concerned with protecting navigation is not determinative of the scope of the measures Congress took to effect that protection.
In 1896 the Attorney General construed Section 6 of the 1894 Act "as an absolute prohibition" against the discharge of material which, although conceded to be covered by Section 6, would not have affected navigability. 21 Opinions of the Attorney General 305, 307. The "ore washings" involved, however, would have "destroy[ed] the fish, pollute[d] the water so as to destroy its usefulness for domestic purposes, and injure[d] the scenery along the stream." Id. at 306. Although the Attorney General opined that the Secretary of War was required to issue a permit under these circumstances, he indicated no doubt about the ...