A-68024, DECEMBER 12, 1935, 15 COMP. GEN. 492

A-68024: Dec 12, 1935

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

OBJECTION IS NOT REQUIRED. TO THE MAKING OF CONTRACTS UNDER WHICH PAYMENTS WILL BE MADE TO THE OWNERS . IS ENGAGED UPON THE CONSTRUCTION OF THE PROJECT FOR THE RECTIFICATION OF THE RIO GRANDE IN THE EL PASO-JUAREZ VALLEY. SUCH CONSTRUCTION IS BEING CARRIED ON WITH FUNDS ALLOTTED TO THIS DEPARTMENT BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS. AT SOME POINTS ALONG THE PRESENT COURSE OF THE RIVER THE CHANNEL WILL BE STRAIGHTENED. STRAIGHTENING THE CHANNEL WILL PLACE THE RIVER AT A DISTANCE REMOTE FROM SUCH PUMPING PLANT AND RELATED IRRIGATION FACILITIES. IT IS BELIEVED. WHICH WILL RESULT FROM THE CONSTRUCTION OF THE RECTIFICATION PROJECT. THERE HAS BEEN PREPARED A DRAFT FORM OF CONTRACT WHICH IT IS PROPOSED TO ENTER INTO WITH THE OWNER OF THE IRRIGATION FACILITIES IN QUESTION.

A-68024, DECEMBER 12, 1935, 15 COMP. GEN. 492

RIO GRANDE RECTIFICATION PROJECT - PAYMENTS ACCOUNT OF INTERFERENCE WITH PRIVATELY OWNED IRRIGATION FACILITIES WHERE THE CONSTRUCTION OF THE PROJECT FOR THE RECTIFICATION OF THE RIO GRANDE RESULTS IN INTERFERENCE WITH PRIVATELY OWNED IRRIGATION FACILITIES, OBJECTION IS NOT REQUIRED, IN VIEW OF THE FACTS AND THE ALTERNATIVE PROVISIONS OF THE ACT OF AUGUST 27, 1935, 49 STAT. 906, TO THE MAKING OF CONTRACTS UNDER WHICH PAYMENTS WILL BE MADE TO THE OWNERS -- IN LIEU OF RESTORATION OR RECONSTRUCTION--- IN AMOUNTS NOT IN EXCESS OF WHAT THE AUTHORIZED RESTORATION OR RECONSTRUCTION WOULD COST THE GOVERNMENT, AND FUNDS ALLOTTED FOR THIS PROJECT FROM MONEYS APPROPRIATED TO CARRY OUT THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195, MAY BE USED FOR THAT PURPOSE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, DECEMBER 12, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 22, 1935, AS FOLLOWS:

THE AMERICAN SECTION OF THE INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, IS ENGAGED UPON THE CONSTRUCTION OF THE PROJECT FOR THE RECTIFICATION OF THE RIO GRANDE IN THE EL PASO-JUAREZ VALLEY, PURSUANT TO THE PROVISIONS OF THE CONVENTION OF FEBRUARY 1, 1933, BETWEEN THE UNITED STATES AND MEXICO. SUCH CONSTRUCTION IS BEING CARRIED ON WITH FUNDS ALLOTTED TO THIS DEPARTMENT BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS.

THE ACT OF CONGRESS APPROVED AUGUST 27, 1935 (PUBLIC, NO. 370, 74TH CONGRESS), CONTAINS A PROVISION IN THE LAST PARAGRAPH OF SUCH ACT AS FOLLOWS:

"WHENEVER THE CONSTRUCTION OF ANY PROJECT OR WORKS UNDERTAKEN OR ADMINISTERED BY THE SECRETARY OF STATE THROUGH THE INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, RESULTS IN THE INTERFERENCE WITH OR NECESSITATES THE ALTERATION OR RESTORATION OF CONSTRUCTED AND EXISTING IRRIGATION OR WATER-SUPPLY STRUCTURES, SANITARY OR SEWAGE DISPOSAL WORKS, OR OTHER STRUCTURES OR PHYSICAL PROPERTY BELONGING TO ANY MUNICIPAL OR PRIVATE CORPORATION, COMPANY, ASSOCIATION, OR INDIVIDUAL, THE SECRETARY OF STATE MAY CAUSE THE RESTORATION OR RECONSTRUCTION OF SUCH WORKS, STRUCTURES, OR PHYSICAL PROPERTY OR THE CONSTRUCTION OF OTHERS IN LIEU THEREOF OR HE MAY COMPENSATE THE OWNERS THEREOF TO THE EXTENT OF THE REASONABLE VALUE THEREOF AS THE SAME MAY BE AGREED UPON BY THE AMERICAN COMMISSIONER WITH SUCH OWNER.'

AT SOME POINTS ALONG THE PRESENT COURSE OF THE RIVER THE CHANNEL WILL BE STRAIGHTENED, RESULTING IN INTERFERENCE WITH CERTAIN PRIVATELY OWNED IRRIGATION FACILITIES. THE AMERICAN COMMISSIONER NOW HAS UNDER CONSIDERATION AN INSTANCE OF SUCH NATURE IN WHICH ONE R. D. HAMMETT OWNS CERTAIN IRRIGATION DITCHES AND PUMPING FACILITIES DIVERTING WATER FROM THE RIO GRANDE. STRAIGHTENING THE CHANNEL WILL PLACE THE RIVER AT A DISTANCE REMOTE FROM SUCH PUMPING PLANT AND RELATED IRRIGATION FACILITIES. ENGINEERING ESTIMATES MADE IN THE OFFICE OF THE AMERICAN COMMISSIONER DISCLOSE THAT THE RESTORATION OF SUCH IRRIGATION SYSTEM, MADE NECESSARY AS A RESULT OF THE CONSTRUCTION OF THE RECTIFICATION PROJECT, COULD BE EFFECTED BY THE GOVERNMENT AT AN ESTIMATED COST OF $1,188, EXCLUSIVE OF OVERHEAD COSTS. THE ONLY FEASIBLE PLAN FOR RESTORATION OF SUCH IRRIGATION FACILITIES WOULD INVOLVE THE USE OF TWO PUMPING PLANTS TO LIFT THE WATER FROM THE RIVER AND CONVEY IT TO THE DITCHES, WHEREAS THE SYSTEM PREVIOUSLY USED, BEFORE THE RECTIFICATION OF THE RIVER CHANNEL, REQUIRED THE USE OF ONLY ONE PUMP. THE OWNER OF SUCH WORKS THEREFORE OBJECTS TO THE RECONSTRUCTION AND RESTORATION OF HIS WATER-SUPPLY SYSTEM IN SUCH A MANNER BECAUSE OF THE ADDITIONAL FUTURE EXPENSE TO HIM OF OPERATING TWO PUMPS. IT IS BELIEVED, HOWEVER, THAT THE OWNER WOULD BE WILLING TO ACCEPT AS FULL COMPENSATION FOR THE INTERFERENCE WITH HIS IRRIGATION FACILITIES, WHICH WILL RESULT FROM THE CONSTRUCTION OF THE RECTIFICATION PROJECT, A SUM EQUIVALENT TO THE ESTIMATED COST TO THE UNITED STATES OF RESTORING SUCH WORKS AS SET FORTH ABOVE. IT WOULD APPEAR TO BE IN THE BEST INTERESTS OF THE UNITED STATES IF THE MATTER COULD BE CONCLUDED BY THE PAYMENT TO THE OWNER OF IRRIGATION FACILITIES THUS INTERFERED WITH, AS FULL COMPENSATION, OF A SUM NOT GREATER THAN THE ESTIMATED COST TO THE UNITED STATES OF ACCOMPLISHING SUCH RESTORATION, INASMUCH AS THE OWNER, UNDER THE PROVISIONS OF A PROPOSED CONTRACT, WOULD BE PRECLUDED FROM ANY FUTURE COMPLAINTS IN CONNECTION WITH SUCH RECONSTRUCTION OR RESTORATION AND THE PAYMENT WOULD CONSTITUTE A FULL AND FINAL SETTLEMENT IN THE MATTER.

THERE HAS BEEN PREPARED A DRAFT FORM OF CONTRACT WHICH IT IS PROPOSED TO ENTER INTO WITH THE OWNER OF THE IRRIGATION FACILITIES IN QUESTION, A COPY OF WHICH DRAFT CONTRACT IS TRANSMITTED HEREWITH. YOUR ADVICE IS REQUESTED AS TO WHETHER THE AMERICAN COMMISSIONER MAY APPROPRIATELY ENTER INTO THE PROPOSED CONTRACT UNDER THE ACT OF CONGRESS APPROVED AUGUST 27, 1935 (PUBLIC, NO. 370, 74TH CONGRESS). IF YOUR CONCLUSION IS IN THE AFFIRMATIVE, YOUR FURTHER ADVICE IS REQUESTED AS TO WHETHER THE APPROPRIATION 1-03/7640.4NIR, STATE, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, 1933 1937, PROJECT NO. 4, IS AVAILABLE FOR PAYMENT OF THE OBLIGATION WHICH WOULD RESULT FROM SUCH CONTRACT.

IN VIEW OF THE FACTS AS SET FORTH IN YOUR LETTER AND THE ALTERNATIVE PROVISIONS OF THE ACT OF AUGUST 27, 1935, 49 STAT. 906, TO THE EFFECT THAT THE SECRETARY OF STATE MAY CAUSE THE RESTORATION OR RECONSTRUCTION OF IRRIGATION OR WATER-SUPPLY STRUCTURES, ETC., UNDER THE CONDITIONS SPECIFIED IN THE ACT, OR, IN LIEU THEREOF, THAT HE MAY COMPENSATE THE OWNERS OF SUCH WORKS, STRUCTURES, TC., TO THE EXTENT OF THE REASONABLE VALUE THEREOF AS MAY BE AGREED UPON BY THE AMERICAN COMMISSIONER WITH SUCH OWNER, THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE MAKING OF CONTRACTS IN THE FORM PROPOSED UNDER WHICH A PAYMENT WILL BE MADE TO THE OWNER--- IN LIEU OF RESTORATION OR RECONSTRUCTION--- IN AN AMOUNT NOT IN EXCESS OF WHAT THE AUTHORIZED RESTORATION OR RECONSTRUCTION WOULD COST THE GOVERNMENT.

THE FUNDS PROPOSED TO BE USED WERE ALLOTTED FROM MONEYS APPROPRIATED TO CARRY OUT THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195, THE PURPOSE FOR WHICH THE ALLOTMENT WAS MADE BEING STATED AS FOLLOWS:

FOR THE RECTIFICATION OF THE RIO GRANDE IN THE EL PASO-JUAREZ VALLEY, THE CONSTRUCTION OF A DAM AND RESERVOIR AT CABALLO, NEW MEXICO, AND THE ACQUISITION AND DISPOSITION OF ANY REAL OR PERSONAL PROPERTY IN CONNECTION WITH THE CONSTRUCTION OF THE PROJECT, IN ACCORDANCE WITH THE TERMS OF THE CONVENTION OF FEB. 1, 1933, CONCLUDED BETWEEN THE UNITED STATES AND MEXICO, AND PROCLAIMED BY THE PRESIDENT OF THE UNITED STATES ON NOVEMBER 13, 1933. * * *

SUCH PURPOSE WOULD APPEAR TO BE WITHIN THE SCOPE OF SECTIONS 202 AND 203 OF THE SAID ACT OF JUNE 16, 1933, AND THE PROPOSED EXPENDITURES UNDER THE CONTRACTS IN QUESTION WOULD APPEAR TO BE INCIDENTAL TO THE WORK OF THE RECTIFICATION OF THE RIO GRANDE. THEREFORE, IN VIEW OF THE PROVISION OF LAW QUOTED IN YOUR LETTER--- WHICH PROVISION WAS ENACTED AFTER THE FUNDS HERE INVOLVED WERE ALLOCATED FOR SUCH RECTIFICATION WORK--- I HAVE TO ADVISE THAT SAID FUNDS ARE AVAILABLE FOR THE PROPOSED EXPENDITURES, IF OTHERWISE CORRECT AND PROPER.