B-136701, JULY 22, 1958, 38 COMP. GEN. 53

B-136701: Jul 22, 1958

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PROJECT CHANGES - CONGRESSIONAL APPROVAL REPAIRS TO A FEDERAL-COUNTY WATERSHED PROJECT WHICH WAS DAMAGED DUE TO UNUSUALLY HEAVY RAINFALL PRIOR TO THE COMPLETION OF THE PLANTING OF SOD- FORMING VEGETATION AND WHICH WOULD BE USELESS UNLESS THE DAMAGE IS REPAIRED MAY BE REGARDED AS WITHIN THE OBJECTIVES OF THE WATERSHED PROTECTION AND FLOOD PREVENTION ACT. WHICH IS REPORTED TO HAVE MET ALL THE REQUIREMENTS OF APPROVAL AS SET FORTH IN THE WATERSHED PROTECTION AND FLOOD PREVENTION ACT OF AUGUST 4. WAS COMPRISED OF LAND TREATMENT AND FIRE PROTECTION MEASURES. WAS INCREASED TO A TOTAL OF $154. 654 WAS FOR LOS BERROS CREEK AND $121. THERE WAS EXECUTED BETWEEN REPRESENTATIVES OF THE LOCAL SPONSORING ORGANIZATIONS AND THE SOIL CONSERVATION SERVICE AN OPERATION AND MAINTENANCE AGREEMENT NO. 12-10-040-84.

B-136701, JULY 22, 1958, 38 COMP. GEN. 53

AGRICULTURE - FEDERAL-STATE WATERSHED PROJECTS - REPAIRS V. PROJECT CHANGES - CONGRESSIONAL APPROVAL REPAIRS TO A FEDERAL-COUNTY WATERSHED PROJECT WHICH WAS DAMAGED DUE TO UNUSUALLY HEAVY RAINFALL PRIOR TO THE COMPLETION OF THE PLANTING OF SOD- FORMING VEGETATION AND WHICH WOULD BE USELESS UNLESS THE DAMAGE IS REPAIRED MAY BE REGARDED AS WITHIN THE OBJECTIVES OF THE WATERSHED PROTECTION AND FLOOD PREVENTION ACT, NOTWITHSTANDING THE ADDITIONAL COSTS REQUIRED TO REBUILD THE PROJECT TO THE ORIGINAL SPECIFICATIONS; HOWEVER, AN ALTERNATIVE PLAN IN LIEU OF REPAIRS INVOLVING A MAJOR REVISION OF THE ORIGINAL PROJECT AT CONSIDERABLE ADDED COST WOULD AMOUNT TO A NEW PROJECT WHICH SHOULD BE SUBMITTED FOR CONGRESSIONAL APPROVAL BEFORE BEING UNDERTAKEN.

TO THE SECRETARY OF AGRICULTURE, JULY 22, 1958:

IN LETTER OF JULY 2, 1958, THE ASSISTANT SECRETARY REQUESTED A DECISION AS TO THE AUTHORITY OF YOUR DEPARTMENT TO PROVIDE ADDITIONAL FEDERAL ASSISTANCE NECESSARY TO (1) REBUILD THE ARROYO GRANDE CREEK CHANNEL TO THE SPECIFICATIONS CONTEMPLATED BY THE WATERSHED WORK PLAN APPROVED OCTOBER 1955, SUBSEQUENT TO ITS DAMAGE BY EXCESSIVE RAINFALL WHICH OCCURRED DURING THE 1957-1958 WINTER, OR (2) REBUILD THE SAID CHANNEL, AND, ALSO, REDESIGN AND CONSTRUCT, AT A MUCH GREATER COST TO THE GOVERNMENT, THE LOS BERROS CREEK CHANNEL, SAN LUIS OBISPO COUNTY, CALIFORNIA, UNDER HIGHER DESIGN CRITERIA THAN THAT ESTABLISHED UNDER THE ORIGINAL PLAN.

IT APPEARS THAT ON MARCH 28, 1956, THE ADMINISTRATOR OF THE SOIL CONSERVATION SERVICE, ACTING ON YOUR BEHALF, ENTERED INTO AN AGREEMENT WITH THE ARROYO GRANDE SOIL CONSERVATION DISTRICT AND THE SAN LUIS OBISPO COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT--- THE LOCAL SPONSORING ORGANIZATIONS--- ON A PLAN FOR IMPROVEMENTS AS SET FORTH IN THE WATERSHED WORK PLAN OF OCTOBER 1955. THIS PLAN, WHICH IS REPORTED TO HAVE MET ALL THE REQUIREMENTS OF APPROVAL AS SET FORTH IN THE WATERSHED PROTECTION AND FLOOD PREVENTION ACT OF AUGUST 4, 1954, 68 STAT. 666, 16 U.S.C. 1001, WAS COMPRISED OF LAND TREATMENT AND FIRE PROTECTION MEASURES; AND IMPROVEMENT OF 10.59 MILE OF THE LOS BERROS CREEK AND 2.84 MILES OF THE ARROYO GRANDE CREEK CHANNELS. THE ORIGINAL ESTIMATED COST OF CONSTRUCTION OF THE CHANNEL IMPROVEMENT WORK AMOUNTED TO $125,579, WHICH, SUBSEQUENT TO THE ENACTMENT OF THE ACT OF AUGUST 7, 1956, 70 STAT. 1088, 16 U.S.C. 1002, WAS INCREASED TO A TOTAL OF $154,287, OF WHICH $32,654 WAS FOR LOS BERROS CREEK AND $121,633 FOR ARROYO GRANDE CREEK.

ON MARCH 15, 1957, THERE WAS EXECUTED BETWEEN REPRESENTATIVES OF THE LOCAL SPONSORING ORGANIZATIONS AND THE SOIL CONSERVATION SERVICE AN OPERATION AND MAINTENANCE AGREEMENT NO. 12-10-040-84, PLACING RESPONSIBILITY ON THE SAN LUIS OBISPO COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT FOR OPERATION AND MAINTENANCE OF THE ARROYO GRANDE CREEK CHANNEL AFTER THE CONTEMPLATED CONSTRUCTION WORK WAS COMPLETED. ALSO, ON MARCH 15, 1957, THE SAME PARTIES ENTERED INTO CONTRACT NO. 12-10- 001-215, WHICH OUTLINED THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES IN CONNECTION WITH THE CONTEMPLATED WORK OF IMPROVEMENT OF THE ARROYO GRANDE CREEK CHANNEL, ESTIMATED THEREIN TO COST $124,333. PURSUANT TO THIS LATTER AGREEMENT, THE CONTRACTING LOCAL ORGANIZATION, ON JUNE 19, 1957, LET A CONTRACT FOR THE CHANNEL IMPROVEMENT WORK AT A COST OF $111,507.63, WHICH, IT IS UNDERSTOOD COVERED THE ENLARGEMENT AND RELOCATION OF THE EXISTING HANNEL; RIPRAP PROTECTION ON THE OUTSIDE OF CURVES AND IN THE VICINITY OF CHANNEL STRUCTURES, AND THE ESTABLISHMENT OF VEGETATION TO PROVIDE PROTECTION FOR THE SIDE SLOPES AND DIKE SECTIONS. APPARENTLY, IT WAS CONTEMPLATED BY THE PARTIES THAT CONSTRUCTION WOULD BE COMPLETED SUFFICIENTLY EARLY IN THE SUMMER OF 1957 TO PERMIT A GOOD STAND OF VEGETATION TO BECOME ESTABLISHED DURING THE FALL MONTHS BEFORE RUNOFF OCCURRED. THE SUBMISSION INDICATES THAT THE MAJOR PART OF THE ANNUAL RAINFALL AND RESULTANT RUNOFF OCCURS DURING THE WINTER, DECEMBER THROUGH FEBRUARY.

CONSTRUCTION DELAYS, HOWEVER, MADE IT IMPOSSIBLE TO ACHIEVE THIS OBJECTIVE AND, HENCE, THE CHANNEL WAS VULNERABLE TO DAMAGE DURING THE RUNOFF PERIOD. THE ASSISTANT SECRETARY INDICATES THAT THE ONLY SOD FORMING VEGETATION AVAILABLE IN THIS PART OF CALIFORNIA IS A SUMMER GROWER NAMED KIKUYU THAT CANNOT BE ESTABLISHED DURING THE WINTER MONTHS. WHILE THE CONSTRUCTION WAS COMPLETED ON DECEMBER 5, 1957, THE SOD-FORMING VEGETATION DID NOT BECOME ESTABLISHED SO AS TO AFFORD PROTECTION DURING THE FIRST WINTER SEASON, WHEREUPON BARLEY WAS PLANTED AS AN INTERIM CROP. THIS WAS ONLY PARTIALLY SUCCESSFUL AS THE BARLEY DID NOT GROW ALONG THE TOES OF THE SLOPES LEAVING THE BANK SLOPES THROUGHOUT THE CHANNEL VULNERABLE TO UNDERCUTTING AND DESTRUCTION FROM THE SUBSEQUENT WINTER RUNOFF.

IT IS UNDERSTOOD THAT THE RAINFALL DURING THE 1957-58 WINTER WAS THE HEAVIEST IN 88 YEARS OF RECORD, AND THAT THE PROLONGED RUNOFF SERIOUSLY UNDERCUT AND DESTROYED THE DESIGN CHANNEL CROSS SECTION FOR EXTENDED REACHES. THE ESTIMATED COST OF RESHAPING THE CHANNEL TO THE ORIGINAL DESIGN IS $67,500, AND THE ESTIMATED COST OF ESTABLISHING A PROTECTIVE VEGETATION IS $20,000, OR APPROXIMATELY $87,500 OVER THE ORIGINAL ESTIMATE OF $124,333.

PURSUANT TO THE TERMS OF THE PROJECT AGREEMENT OF MARCH 15, 1957, THE SOIL CONSERVATION HAS PAID THE LOCAL ORGANIZATION $112,024.46 AS THE COST OF THE IMPROVEMENT WORK PERFORMED.

IT APPEARS THAT THE SOIL CONSERVATION SERVICE NOW HAS UNDER CONSIDERATION A MORE COMPREHENSIVE CONSTRUCTION PLAN INVOLVING AN ESTIMATED COST OF $570,000.

THE SUBMISSION DOES NOT INDICATE WHETHER THE REPORTED DELAYS IN CONSTRUCTION WERE, IN ANY PROPER OR LEGAL SENSE, ATTRIBUTABLE TO THE FAULT OR NEGLIGENCE OF THE CONSTRUCTION CONTRACTOR SO AS TO RENDER HIM LIABLE IN DAMAGES TO THE UNITED STATES OR THE SPONSORING ORGANIZATIONS FOR BREACH OF CONTRACT.

BE THAT AS IT MAY, THE STATEMENT THAT THE RAINFALL DURING THE 1957 58 WINTER SEASON WAS THE WORST ON RECORD FOR THAT AREA LEAVES LITTLE, IF ANY, ROOM FOR DOUBT THAT THE WEATHER CONDITIONS REFERRED TO CONSTITUTED AND ACT OF GOD, SUCH AS ORDINARILY WOULD RELIEVE THE CONSTRUCTION CONTRACTOR OF LIABILITY FOR THE DAMAGES RESULTING THEREFROM. SEE UNITED STATES V. KANSAS CITY SOUTHERN RY. CO., 189 F. 471, 476; COLUMBUS RY. AND POWER CO. V. COLUMBUS, 249 U.S. 399, 412.

CONCERNING THE INQUIRY AS TO WHETHER THE SOIL CONSERVATION SERVICE HAS THE AUTHORITY TO PROVIDE THE ADDITIONAL ASSISTANCE NECESSARY TO REBUILD THE ARROYO GRANDE CREEK CHANNEL TO THE SPECIFICATIONS CONTEMPLATED IN THE WATERSHED WORK PLAN OF 1955, WHILE IT IS TRUE THE ADDITIONAL COSTS INVOLVED WOULD MATERIALLY ALTER THE BENEFIT-COST RATIO SHOWN IN THE WATERSHED WORK PLAN FOR CHANNEL IMPROVEMENT, AS SUGGESTED BY THE ASSISTANT SECRETARY, THE MANIFEST PURPOSES OR OBJECTIVES OF THE STATUTE ESSENTIALLY PERMIT THE CONSIDERATION OF SUCH OTHER FACTORS AS THE PREVENTION OF LOSS OF LIFE, CONTRIBUTION TO THE GENERAL COMMUNITY WELFARE AND EVENTUAL INCREASE IN BUSINESS REVENUES IN THE AREA. IN VIEW THEREOF AND SINCE THE PROJECT APPARENTLY WOULD BE USELESS UNLESS THE DAMAGE CAUSED BY THE HEAVY RAINFALL IS REPAIRED THE FIRST INQUIRY IS ANSWERED IN THE AFFIRMATIVE.

REGARDING THE SECOND INQUIRY AS TO THE AUTHORITY OF THE SOIL CONSERVATION SERVICE TO ADOPT THE SUGGESTED ALTERNATIVE PLAN INVOLVING A MAJOR REVISION OF THE ORIGINAL PLAN AT AN ESTIMATED COST OF $570,000, IT IS OUR VIEW THAT SUCH A PLAN INVOLVES CHANGES SO SIGNIFICANT IN SCOPE AS TO AMOUNT TO A NEW PROJECT. CONSEQUENTLY, WE BELIEVE THAT BEFORE PROCEEDING WITH THE SUGGESTED ALTERNATIVE PLAN THE SOIL CONSERVATION SERVICE LEGALLY WOULD BE REQUIRED TO OBTAIN THE NECESSARY APPROVAL PRESCRIBED BY THE ACT. WHILE SECTION 2 OF THE ACT OF AUGUST 7, 1956, 16 U.S.C. 1001 NOTE, WHICH AMENDED THE WATERSHED PROTECTION AND FLOOD PREVENTION ACT, PROVIDES THAT PLANS APPROVED PRIOR TO AUGUST 7, 1956, NEED NOT BE RESUBMITTED FOR APPROVAL, IT WAS NOT THE INTENT OF THE CONGRESS THAT MAJOR CHANGES COULD BE MADE IN THE SCOPE OF THE PROJECT WITHOUT FIRST OBTAINING THE APPROVAL OF THE CONGRESSIONAL COMMITTEES. IN THAT CONNECTION, SEE PAGE 5 OF THE SENATE REPORT NO. 2585 DATED JULY 16, 1956, ACCOMPANYING H.R. 8750 WHICH SUBSEQUENTLY BECAME THE ACT OF AUGUST 7, 1956, WHEREIN IT IS STATED THAT "IT IS THE UNDERSTANDING OF THE COMMITTEE THAT ANY SIGNIFICANT CHANGE IN PURPOSE OR IN SCOPE OF PLANS WOULD REQUIRE COMPLIANCE WITH APPLICABLE APPROVAL PROCEDURES.' ACCORDINGLY, THE SECOND QUESTION IS ANSWERED IN THE NEGATIVE.