B-141233, OCT. 9, 1961
Highlights
OPERATION AND MAINTENANCE OF THE PROJECT IS THE ACT OF AUGUST 19. VEGETATION AND DEBRIS HAVE INCREASED TO THE EXTENT OF REQUIRING THEIR REMOVAL TO SECURE AND MAINTAIN THE EFFICIENCY OF THE PROJECT. THE REMOVAL OF VEGETATION AND DEBRIS IS A JOINT ENTERPRISE OF THE UNITED STATES AND MEXICO. THE UNITED STATES AND THE MEXICAN SECTIONS OF THE COMMISSION WILL EACH ARRANGE FOR THE CLEARING OF ITS SIDE OF THE RIVER. IS MADE UP OF THREE ITEMS: (1) SALARIES AND EXPENSES. THE PROVISO GIVING RISE TO THE SUBMITTED QUESTION IS INCLUDED IN THE CONSTRUCTION ITEM. YOU ARE ADVISED WE CONCUR IN THE VIEW STATED IN YOUR LETTER THAT SUCH CLEARING AND GRUBBING OF THE RIVER CHANNEL IS NOT "CONSTRUCTION" WITHIN THE MEANING OF THAT TERM AS USED IN THE PROVISO.
B-141233, OCT. 9, 1961
TO THE COMMISSIONER, UNITED STATES SECTION, INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO:
YOUR LETTER OF AUGUST 3, 1961, SUBMITTED FOR OUR CONSIDERATION THE QUESTION:
"MAY THIS AGENCY, ON BEHALF OF THE UNITED STATES, MAKE EXPENDITURES TO CLEAR AND MAINTAIN CLEAR OF VEGETATION THE UNITED STATES BANK OF THE RIVER CHANNEL AS A PART OF THE IMPROVEMENT OF THE LOWER RIO GRANDE FLOOD CONTROL PROJECT, AUTHORIZED BY THE ACTS SET OUT BELOW, WITHOUT REQUIRING THE APPROVAL OF TITLE BY THE ATTORNEY GENERAL OF EASEMENTS DONATED FOR SUCH PURPOSE?
THE LOWER RIO GRANDE FLOOD-CONTROL PROJECT EXTENDS FROM THE TOWN OF PENITAS, TEXAS, TO THE GULF OF MEXICO, A DISTANCE OF ABOUT 180 RIVER MILES. AUTHORITY FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF THE PROJECT IS THE ACT OF AUGUST 19, 1935, 49 STAT. 660, AS AMENDED (22 U.S.C. 277-277D).
IN THE CHANNEL OF THE LOWER RIO GRANDE, A PRIMARY PART OF THE LOWER RIO GRANDE FLOOD-CONTROL PROJECT, VEGETATION AND DEBRIS HAVE INCREASED TO THE EXTENT OF REQUIRING THEIR REMOVAL TO SECURE AND MAINTAIN THE EFFICIENCY OF THE PROJECT. THE REMOVAL OF VEGETATION AND DEBRIS IS A JOINT ENTERPRISE OF THE UNITED STATES AND MEXICO. THE UNITED STATES AND THE MEXICAN SECTIONS OF THE COMMISSION WILL EACH ARRANGE FOR THE CLEARING OF ITS SIDE OF THE RIVER.
THE QUESTION PRESENTED INVOLVES AN APPROPRIATION PROVISO. THE CURRENT APPROPRIATION OF THE COMMISSION, PUBLIC LAW 87-264, APPROVED SEPTEMBER 21, 1961, 75 STAT. 545, 547, LIKE ITS PREDECESSORS FOR SOME YEARS, IS MADE UP OF THREE ITEMS: (1) SALARIES AND EXPENSES, (2) OPERATION AND MAINTENANCE, (3) CONSTRUCTION. THE PROVISO GIVING RISE TO THE SUBMITTED QUESTION IS INCLUDED IN THE CONSTRUCTION ITEM. IT STATES:
"* * * 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 * * *.'
THE CLEARING OF THE BANK OF THE RIVER CHANNEL OF VEGETATION AND DEBRIS, BY ITSELF, WITHOUT THE ERECTION OF LEVEES, ETC. IN THE AREAS INVOLVED, WHICH WE UNDERSTAND TO BE THE SITUATION CONTEMPLATED BY THE QUESTION, WOULD NOT BE ENCOMPASSED IN THE ORDINARY USAGE OF THE TERM ,CONSTRUCTION.' AND AS NEITHER THE LEGISLATIVE HISTORY OF THE PROVISO, INCLUDED IN APPROPRIATION ACTS FOR THE FLOOD CONTROL PROJECT SINCE THE STATE DEPARTMENT APPROPRIATION ACT OF 1937, NOR THE PROVISO'S APPARENT PURPOSE OF PROTECTING THE INTEREST OF THE UNITED STATES APPEARS TO WARRANT A DIFFERENT CONCLUSION, YOU ARE ADVISED WE CONCUR IN THE VIEW STATED IN YOUR LETTER THAT SUCH CLEARING AND GRUBBING OF THE RIVER CHANNEL IS NOT "CONSTRUCTION" WITHIN THE MEANING OF THAT TERM AS USED IN THE PROVISO.