B-125616, OCTOBER 20, 1955, 35 COMP. GEN. 214

B-125616: Oct 20, 1955

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WAS ENACTED SO THAT THE DISTRICT COULD OBTAIN INCOME FROM IDLE PROPERTY AND NEITHER THAT ACT NOR ANY OTHER WOULD AUTHORIZE THE EXECUTION OF A LEASE TO LAND WHICH IS PRESENTLY USED FOR A WATER INTAKE. SUCH AUTHORITY IS NOT PROVIDED BY THE ACT OF DECEMBER 20. WHICH MERELY AUTHORIZES THE RENTING OF BUILDINGS OR LANDS OWNED BY THE DISTRICT AND NOT REQUIRED FOR THE PURPOSE FOR WHICH THEY WERE ACQUIRED. IT IS STATED IN YOUR LETTER THAT FROM TIME TO TIME OVER THE PAST 40 OR MORE YEARS THE DISTRICT HAS ADDED. TO THE TOTAL ACREAGE OF THIS SITE AS NEEDS HAVE REQUIRED. TITLE TO THE LAND IS IN THE UNITED STATES BUT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA HAVE JURISDICTION OVER THE SITE. (D) SUPPLY FILTERED WATER TO THE DISTRICT'S CORRECTIONAL INSTITUTIONS BETWEEN THE TIME THE DISTRICT'S NORMAL OPERATION OF ITS EXISTING INTAKE AND PUMPING STATION CEASES AND THE TIME THE NEW INTAKE AND PUMPING STATION ARE IN NORMAL AND SATISFACTORY OPERATION.

B-125616, OCTOBER 20, 1955, 35 COMP. GEN. 214

DISTRICT OF COLUMBIA - LEASES - IDLE, SURPLUS, OR UNNEEDED PROPERTY THE ACT OF DECEMBER 20, 1944, WHICH AUTHORIZES THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO RENT BUILDINGS OR LANDS NOT THEN REQUIRED FOR THE PURPOSE FOR WHICH ACQUIRED, WAS ENACTED SO THAT THE DISTRICT COULD OBTAIN INCOME FROM IDLE PROPERTY AND NEITHER THAT ACT NOR ANY OTHER WOULD AUTHORIZE THE EXECUTION OF A LEASE TO LAND WHICH IS PRESENTLY USED FOR A WATER INTAKE, PUMPING STATION AND CARETAKER'S HOUSE AT THE SITE OF THE CORRECTIONAL INSTITUTIONS, EVEN THOUGH THE DISTRICT WOULD ACQUIRE VALUABLE IMPROVEMENTS TO BE CONSTRUCTED BY THE LESSOR. THE CONSTRUCTION OF NEW BUILDINGS AND FACILITIES BY OR FOR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA REQUIRES AUTHORITY, EITHER SPECIFICALLY EXPRESSED OR NECESSARILY IMPLIED IN SOME CONGRESSIONAL ENACTMENT, AND SUCH AUTHORITY IS NOT PROVIDED BY THE ACT OF DECEMBER 20, 1944, WHICH MERELY AUTHORIZES THE RENTING OF BUILDINGS OR LANDS OWNED BY THE DISTRICT AND NOT REQUIRED FOR THE PURPOSE FOR WHICH THEY WERE ACQUIRED.

TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, OCTOBER 20, 1955:

YOUR LETTER OF SEPTEMBER 27, 1955, REQUESTS ADVICE WHETHER OUR OFFICE WOULD BE REQUIRED TO OBJECT TO A LEASE, TO THE ALEXANDRIA WATER COMPANY, OF A PART OF THE LAND COMPRISING THE SITE OF THE DISTRICT'S CORRECTIONAL INSTITUTIONS LOCATED AT OCCOQUAN AND LORTON, VIRGINIA.

IT IS STATED IN YOUR LETTER THAT FROM TIME TO TIME OVER THE PAST 40 OR MORE YEARS THE DISTRICT HAS ADDED, BY PURCHASE OR CONDEMNATION, TO THE TOTAL ACREAGE OF THIS SITE AS NEEDS HAVE REQUIRED. TITLE TO THE LAND IS IN THE UNITED STATES BUT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA HAVE JURISDICTION OVER THE SITE. THE ALEXANDRIA WATER COMPANY HAS A DAM ON OCCOQUAN CREEK, ABOUT ONE-HALF MILE DOWN STREAM FROM THE DISTRICT'S RAW -WATER INTAKE FOR THE INSTITUTIONS, WHICH THE COMPANY DESIRES TO RAISE TO MEET ITS INCREASING WATER REQUIREMENTS. THE RAISING OF THE DAM WOULD CAUSE A PART OF THE INVOLVED GOVERNMENT SITE ALONG OCCOQUAN CREEK AND ELKHORN RUN TO BE OVERFLOWED AND THEREBY SUBMERGE THE DISTRICT'S PRESENT WATER INTAKE, PUMPING STATION, AND CARETAKER'S RESIDENCE.

THE WATER COMPANY DESIRES TO LEASE THE PART OF THE SITE THAT WOULD BE OVERFLOWED AND USE IT FOR FLOODING PURPOSES ONLY. THE DISTRICT WOULD RESERVE ALL RIPARIAN RIGHTS IT POSSESSES INCLUDING THE RIGHT TO WITHDRAW SUFFICIENT WATER FOR THE NEEDS OF THE EXISTING AND FUTURE INSTITUTIONS AND FACILITIES. THE LEASE WOULD RUN FOR A PERIOD OF 99 YEARS WITH AN OPTION TO THE WATER COMPANY TO EXTEND IT FOR A FURTHER TERM OF 99 YEARS. CONSIDERATION THEREOF, THE COMPANY, WITHOUT ANY COST TO THE DISTRICT, WOULD:

(A) PAY THE DISTRICT AN ANNUAL RENTAL OF ONE ($1.00) DOLLAR.

(B) CONSTRUCT FOR THE DISTRICT, AT A HIGHER ELEVATION ON DISTRICT PROPERTY, A NEW WATER INTAKE AND PUMPING STATION, COMPLETE WITH THREE VERTICAL PUMPS AND ALL OTHER NECESSARY EQUIPMENT AND CONTROLS, AND A NEW CARETAKER'S RESIDENCE.

(C) INSTALL A CONNECTION BETWEEN THE WATER COMPANY'S FILTERED-WATER MAINS AND THE DISTRICT'S FILTERED-WATER MAINS AND MAINTAIN SAID CONNECTION DURING THE TERM OF THE LEASE AND ANY EXTENSION THEREOF.

(D) SUPPLY FILTERED WATER TO THE DISTRICT'S CORRECTIONAL INSTITUTIONS BETWEEN THE TIME THE DISTRICT'S NORMAL OPERATION OF ITS EXISTING INTAKE AND PUMPING STATION CEASES AND THE TIME THE NEW INTAKE AND PUMPING STATION ARE IN NORMAL AND SATISFACTORY OPERATION.

(E) PERMIT THE DISTRICT TO WITHDRAW WATER FROM THE IMPOUNDING RESERVOIR TO BE CREATED BY THE RAISING OF THE WATER COMPANY'S DAM FOR THE NEEDS OF THE DISTRICT'S EXISTING AND FUTURE CORRECTIONAL AND OTHER INSTITUTIONS AND FACILITIES.

(F) INSTALL A RAW WATER CONNECTION BETWEEN THE WATER COMPANY'S 30 INCH TRANSMISSION MAIN AND THE DISTRICT'S RAW-WATER MAINS, FOR EMERGENCY STANDBY SERVICE, AND MAINTAIN SAID CONNECTION DURING THE TERM OF THE LEASE AND ANY EXTENSION THEREOF.

(G) SUPPLY THE DISTRICT RAW WATER FROM SAID RESERVOIR FOR ITS CORRECTIONAL AND OTHER INSTITUTIONS AND FACILITIES WHENEVER THE IMPOUNDED WATER LEVEL IS TOO LOW TO ENABLE THE DISTRICT TO WITHDRAW WATER WITH ITS OWN PUMPS.

YOU SAY THE NATURAL FLOW OF WATER IN OCCOQUAN CREEK IS EXTREMELY VARIABLE AND AT TIMES BELOW THE NORMAL REQUIREMENTS OF THE DISTRICT'S CORRECTIONAL INSTITUTIONS AND, THAT THE DISTRICT CONTEMPLATES ESTABLISHING ADDITIONAL INSTITUTIONS AND FACILITIES ON THE SITE. THE PRINCIPAL ADVANTAGES OF THE LEASE TO THE DISTRICT WOULD BE, WITHOUT ANY COST TO THE DISTRICT, A GREATER ASSURANCE OF AN ADEQUATE SUPPLY OF WATER AT ALL TIMES FOR ITS INSTITUTIONS AND FACILITIES. ALSO, THE DISTRICT WOULD RECEIVE, WITHOUT COST, A NEW WATER INTAKE AND PUMPING STATION COMPLETE WITH PUMPS AND ALL OTHER NECESSARY EQUIPMENT AND A NEW CARETAKER'S RESIDENCE IN PLACE OF THESE NOW OWNED BY THE DISTRICT, THE USEFUL LIVES OF WHICH HAVE, FOR THE MOST PART, BEEN EXHAUSTED. YOU REPORT THE DISTRICT CORPORATION COUNSEL HAS ADVISED THE BOARD OF COMMISSIONERS THAT, IN HIS OPINION, THEY HAVE THE AUTHORITY TO MAKE SUCH A LEASE UNDER THE PROVISIONS OF SECTION 1 (C) OF THE ACT OF DECEMBER 20, 1944, 58 STAT. 819, D.C. CODE, SEC. 1-244 (C). THE ACT READS IN PERTINENT PART AS FOLLOWS:

THAT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE AUTHORIZED AND EMPOWERED WITHIN THEIR DISCRETION

(C) TO RENT ANY BUILDING OR LAND BELONGING TO THE DISTRICT OF COLUMBIA OR UNDER THE JURISDICTION OF THE COMMISSIONERS, OR ANY AVAILABLE SPACE THEREIN, WHENEVER SUCH BUILDING OR LAND, OR SPACE THEREIN, IS NOT THEN REQUIRED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED,AND TO RENT ANY USED PERSONAL PROPERTY BELONGING TO THE DISTRICT OF COLUMBIA WHICH IS NOT THEN NEEDED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED: * * *

WHILE IT IS THE RESPONSIBILITY OF THE COMMISSIONERS TO MAKE THE DETERMINATION OF WHETHER ANY BUILDING OR LAND "IS NOT THEN REQUIRED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED," IT APPEARS THAT IN THIS CASE THE LAND IS BEING USED AT THE PRESENT TIME FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED. ALSO, THE OVERFLOW, WHICH WOULD RESULT FROM THE PROPOSED LEASE, WOULD NECESSITATE THE CONSTRUCTION OF A NEW WATER INTAKE, A NEW PUMPING STATION AND A NEW CARETAKER'S RESIDENCE TO REPLACE THOSE NOW BEING USED. WHILE YOU SAY THE USEFUL LIFE OF THESE INSTALLATIONS HAVE, FOR THE MOST PART, BEEN EXHAUSTED, THERE IS NOTHING IN THE 1944 ACT OR ITS LEGISLATIVE HISTORY WHICH WOULD AUTHORIZE THE CONSTRUCTION OF NEW INSTALLATIONS FOR THE DISTRICT AS PART OF THE RENTAL CONSIDERATION FOR THE LEASE. THE CONGRESS, IN THE VARIOUS APPROPRIATION ACTS FOR THE DISTRICT OF COLUMBIA, HAS SPECIFICALLY AUTHORIZED AND APPROPRIATED FUNDS FOR THE CONSTRUCTION OF BUILDINGS INCLUDING THE NECESSARY FACILITIES FOR THEIR OPERATION. THE CONCLUSION TO BE DRAWN FROM THESE AND OTHER PERTINENT STATUTES IS THAT THE CONSTRUCTION OF NEW BUILDINGS AND FACILITIES BY OR FOR THE DISTRICT OF COLUMBIA REQUIRES AUTHORITY, EITHER SPECIFICALLY EXPRESSED OR NECESSARILY IMPLIED IN SOME CONGRESSIONAL ENACTMENT.

THE PURPOSE OF THE ACT OF DECEMBER 20, 1944, AS SET OUT IN LETTER OF JULY 2, 1943, FROM THE PRESIDENT, BOARD OF COMMISSIONERS, AND QUOTED IN S. REP. NO. 1200, 78TH CONGRESS, WAS TO "ENABLE THE DISTRICT OF COLUMBIA TO OBTAIN INCOME FORM VARIOUS MUNICIPAL PROPERTY WHICH WOULD OTHERWISE STAND IDLE.' SINCE THE LAND IS BEING USED AT THE PRESENT TIME FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED AND NOT STANDING "IDLE" AND THE CONSTRUCTION OF THE NEW PUMPING STATION AND CARETAKER'S RESIDENCE HAS NOT BEEN SPECIFICALLY AUTHORIZED NOR IS ITS CONSTRUCTION NECESSARILY IMPLIED FROM A CONGRESSIONAL ENACTMENT, IT IS OUR CONCLUSION THAT THE BOARD OF COMMISSIONERS DOES NOT HAVE THE AUTHORITY TO ENTER INTO THE PROPOSED LEASE UNDER THE ACT OF DECEMBER 20, 1944, OR BY ANY OTHER STATUTE WHICH HAS COME TO OUR ATTENTION, NOTWITHSTANDING THE ADVANTAGES WHICH THE LEASE MIGHT GIVE TO THE DISTRICT.