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B-141233, JAN. 27, 1960

B-141233 Jan 27, 1960
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IT IS STATED THAT AUTHORIZATION FOR THE PROJECT IS CONTAINED IN THE ACT OF AUGUST 19. APPROPRIATIONS FOR THE CURRENT FISCAL YEAR GOVERNING YOUR AGENCY ARE CONTAINED IN PUBLIC LAW 86- 84 (THE DEPARTMENT OF STATE APPROPRIATION ACT. " THE SAID PROJECT IS ALSO PROVIDED FOR. HAVE SINCE THE INCEPTION OF THE PROJECT. YOU FURTHER SAY THAT THERE IS NOTHING. IN THE APPROPRIATION RESTRICTION TO INDICATE THAT THE PROCEDURE FOLLOWED IN THE PAST IS A REQUIREMENT AND THAT TO THE CONTRARY. WOULD TAKE ANY ACTION WHICH MIGHT HAVE THE EFFECT OF NEGATING THE PURPOSE FOR WHICH SUCH APPROPRIATIONS WERE ORIGINALLY MADE. ASSUMING THAT THERE WAS NO FORESEEABLE NEED FOR THE BORROW EASEMENT AT THE TIME CONSTRUCTION WAS COMMENCED.

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B-141233, JAN. 27, 1960

TO MR. LELAND H. HEWITT, INTERNATIONAL BOUNDARY AND WATER COMMISSION:

ON NOVEMBER 10, 1959, YOU REQUESTED OUR DECISION AS TO WHETHER YOUR AGENCY, ON BEHALF OF THE UNITED STATES, MAY MAKE EXPENDITURES FOR THE ACQUISITION OF BORROW EASEMENT FOR THE LOWER RIO GRANDE FLOOD CONTROL PROJECT FOR MAINTENANCE PURPOSES.

IT IS STATED THAT AUTHORIZATION FOR THE PROJECT IS CONTAINED IN THE ACT OF AUGUST 19, 1935, 49 STAT. 660, 22 U.S.C. 277A; APPROPRIATIONS FOR THE CURRENT FISCAL YEAR GOVERNING YOUR AGENCY ARE CONTAINED IN PUBLIC LAW 86- 84 (THE DEPARTMENT OF STATE APPROPRIATION ACT, 1960, 73 STAT. 184); THESE APPROPRIATIONS ALLOT $2,160,000 FOR OPERATION AND MAINTENANCE OF FLOOD CONTROL (AMONG OTHER) PROJECTS, AND UNDER "CONSTRUCTION," THE SAID PROJECT IS ALSO PROVIDED FOR, THERE BEING CONTAINED THEREIN, HOWEVER, THE FOLLOWING RESTRICTION:

"THAT NO EXPENDITURES SHALL BE MADE FOR THE LOWER RIO GRANDE FLOOD CONTROL PROJECT FOR CONSTRUCTION ON ANY LAND, SITE, OR EASEMENT IN CONNECTION WITH THIS PROJECT EXCEPT SUCH AS HAS BEEN ACQUIRED BY DONATION AND THE TITLE THERETO HAS BEEN APPROVED BY THE ATTORNEY GENERAL OF THE UNITED STATES * * *.'

YOU SAY THAT THIS RESTRICTION, IN THE SAME OR SIMILAR LANGUAGE, HAS BEEN INCLUDED IN APPROPRIATION ACTS FOR SAID PROJECT SINCE THE STATE DEPARTMENT APPROPRIATION ACT OF 1937.

YOUR RECORDS REPORTEDLY INDICATE THAT THE COUNTIES OF CAMERON AND RIDALGO, TEXAS, HAVE SINCE THE INCEPTION OF THE PROJECT, ACQUIRED AND DONATED TO THE UNITED STATES PERPETUAL BORROW EASEMENTS FOR CONSTRUCTION, OPERATION, AND MAINTENANCE OF FLOOD CONTROL WORKS OF SUCH PROJECT, AND THAT THE UNITED STATES HAS NOT EXPENDED ANY MONEYS FOR THE ACQUISITION OF BORROW EASEMENTS FOR ANY SUCH WORKS. YOU FURTHER SAY THAT THERE IS NOTHING, HOWEVER, IN THE APPROPRIATION RESTRICTION TO INDICATE THAT THE PROCEDURE FOLLOWED IN THE PAST IS A REQUIREMENT AND THAT TO THE CONTRARY, SINCE THE RESTRICTION SPECIFICALLY RECITES "CONSTRUCTION" ONLY AND UNDER THAT HEADING THE CONCLUSION APPEARS TO FOLLOW THAT UNRESTRICTED EXPENDITURES, EXCEPT LIMITED AS TO AMOUNT, FOR MAINTENANCE MAY INCLUDE THE PURCHASE OF BORROW EASEMENTS FOR SUCH PURPOSE. YOU ALSO SAY THAT IT APPEARS ILLOGICAL TO CONCLUDE, UNLESS IT BE OTHERWISE EVIDENT, THAT THE CONGRESS AFTER HAVING INVESTED IN THIS VALUABLE PROJECT THE CONSIDERABLE AMOUNT EXPENDED PURSUANT TO APPROPRIATIONS THEREFOR, WOULD TAKE ANY ACTION WHICH MIGHT HAVE THE EFFECT OF NEGATING THE PURPOSE FOR WHICH SUCH APPROPRIATIONS WERE ORIGINALLY MADE.

OUR REVIEW OF THE LEGISLATIVE HISTORY OF THE RESTRICTION QUOTED ABOVE HAS DISCLOSED NOTHING SPECIFICALLY INDICATING ITS INTENDED PURPOSE. FROM A MERE LITERAL READING OF THE BASIC AUTHORIZATION FOR THE PROJECT AND THE CURRENT APPROPRIATION THEREFOR INCLUDING THE REFERRED TO RESTRICTION, WE FIND NO STATUTORY LANGUAGE WHICH WOULD PRECLUDE YOU FROM ACQUIRING A BORROW EASEMENT FOR MAINTENANCE OF A COMPLETED SEGMENT OF THE PROJECT. ASSUMING THAT THERE WAS NO FORESEEABLE NEED FOR THE BORROW EASEMENT AT THE TIME CONSTRUCTION WAS COMMENCED, SINCE BORROW PITS ARE USUALLY REQUIRED FOR CONSTRUCTION PURPOSES AND REMAIN AVAILABLE THEREAFTER FOR MAINTENANCE PURPOSES, AND THAT THE BORROW EASEMENT IS TO BE ACQUIRED SOLELY FOR MAINTENANCE PURPOSES AFTER COMPETITION OF CONSTRUCTION RATHER THAN FOR FUTURE CONSTRUCTION PURPOSES, WE CONCLUDE THAT THE ACQUISITION THEREOF FROM THE OPERATION AND MAINTENANCE FUNDS WOULD BE LEGALLY PROPER.

IN VIEW OF THE LONG STANDING PRACTICE OF USING ONLY DONATED BORROW EASEMENTS SINCE THE INCEPTION OF THE PROJECT AND THE DOUBT AS TO THE INTENDED PURPOSE OF THE APPROPRIATION RESTRICTION, HOWEVER, AND SINCE THE OPERATION AND MAINTENANCE FUNDS HAVE NEVER BEEN JUSTIFIED TO THE CONGRESS FOR THE PURCHASE OF BORROW EASEMENTS, WE FEEL THAT THE MATTER SHOULD BE DISCUSSED WITH THE HOUSE AND SENATE COMMITTEES ON APPROPRIATIONS PRIOR TO THE PURCHASE OF ANY BORROW EASEMENTS FOR THE LOWER RIO GRANDE FLOOD CONTROL PROJECT.

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