B-148322, MARCH 21, 1962, 41 COMP. GEN. 606

B-148322: Mar 21, 1962

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ANY CHANGE IN THE HIGHWAY TO ACCOMMODATE THE FLOOD CONTROL PROJECT WHEN THE HIGHWAY CONSTRUCTION IS NEARLY COMPLETED. SO FAR AS IS PERTINENT TO THE QUESTION RAISED. DOC. 417) WHICH HAD BEEN RENDERED ON MAY 3 OF THAT YEAR (1956) WOULD HAVE REQUIRED A BRIDGE (TWIN BRIDGES) ACROSS AN AUXILIARY DOWNSTREAM. CONTACTED THE CORPS OF ENGINEERS AND WAS ADVISED IN LETTER OF OCTOBER 23. THE TENTATIVE DIMENSIONS OF THE AUXILIARY CHANNEL ARE GIVEN IN THE ENCLOSED PLATES 3. WE HAVE AGREED. THAT DURING THE FINAL DESIGN STUDIES BEFORE CONSTRUCTION OF THE PROJECT WE WILL GIVE CAREFUL CONSIDERATION TO ELIMINATING THE AUXILIARY CHANNEL AND PROVIDING A SINGLE LARGE CHANNEL ON THE ALIGNMENT OF THE EXISTING CHANNEL.

B-148322, MARCH 21, 1962, 41 COMP. GEN. 606

HIGHWAYS - CONSTRUCTION - FEDERAL-AID HIGHWAY PROGRAM - OTHER PUBLIC WORKS PROJECTS ALTHOUGH THE REQUIREMENTS IN A FLOOD CONTROL PROJECT THAT HIGHWAYS AND ROAD BRIDGES INCIDENT TO THE PROJECT BE FINANCED WITHOUT COST TO THE FEDERAL GOVERNMENT WOULD PRECLUDE THE USE OF FEDERAL-AID HIGHWAY FUNDS FOR CONSTRUCTION OF A BRIDGE ON A SUBSTANTIALLY COMPLETED INTERSTATE HIGHWAY IN THE FLOOD CONTROL AREA, ANY CHANGE IN THE HIGHWAY TO ACCOMMODATE THE FLOOD CONTROL PROJECT WHEN THE HIGHWAY CONSTRUCTION IS NEARLY COMPLETED, OR AFTER ITS COMPLETION, COULD NOT BE REGARDED AS FOR HIGHWAY PURPOSES, AND, THEREFORE, FEDERAL-AID HIGHWAY FUNDS MAY NOT BE USED FOR CONSTRUCTION OF THE BRIDGE.

TO THE SECRETARY OF COMMERCE, MARCH 21, 1962:

IN LETTER OF MARCH 1, 1962, THE ASSISTANT SECRETARY OF COMMERCE REQUESTS A DECISION AS TO WHETHER FEDERAL-AID HIGHWAY FUNDS MAY PARTICIPATE IN THE CONSTRUCTION OF A BRIDGE (TWIN BRIDGES) ON INTERSTATE HIGHWAY 29 AT SIOUX CITY, IOWA, UNDER THE CIRCUMSTANCES SET FORTH BELOW.

THE FLOOD CONTROL ACT OF 1958, PUBLIC LAW NO. 85-500, 72 STAT. 312, UNDER THE HEADING MISSOURI RIVER BASIN, AUTHORIZED IMPROVEMENT OF FLOYD RIVER, IOWA, TO PROVIDE FLOOD CONTROL AT SIOUX CITY, THE PROJECT TO BE EXECUTED SUBSTANTIALLY AS RECOMMENDED IN HOUSE DOCUMENT NO. 417, DATED JUNE 6, 1956. SO FAR AS IS PERTINENT TO THE QUESTION RAISED, THE HOUSE DOCUMENT PRESENTED A PLAN CALLING FOR RECTIFICATION OF AN EXISTING FLOOD CHANNEL AT SIOUX CITY TO CARRY ABOUT ONE-HALF OF FLOOD FLOWS, AND THE CONSTRUCTION OF AN AUXILIARY CHANNEL TO CARRY THE REMAINING FLOOD WATERS, SUBJECT TO ASSURANCES FROM RESPONSIBLE LOCAL INTERESTS THAT THEY WOULD, AMONG OTHER THINGS, MAKE, WITHOUT COST TO THE UNITED STATES, ALL NECESSARY ROAD, HIGHWAY, HIGHWAY BRIDGE, AND UTILITY ALTERATIONS AND ADDITIONS. THE PLAN EXPLICITLY REFERS TO VARIOUS NEW BRIDGES AND BRIDGE ALTERATIONS THAT WOULD BE REQUIRED.

IN 1956 THE STATE OF IOWA BEGAN DESIGN OF THE SIOUX CITY FREEWAY, I 29. THE CORPS OF ENGINEERS REPORT COVERING THE FLOOD CONTROL PROJECT (H. DOC. 417) WHICH HAD BEEN RENDERED ON MAY 3 OF THAT YEAR (1956) WOULD HAVE REQUIRED A BRIDGE (TWIN BRIDGES) ACROSS AN AUXILIARY DOWNSTREAM. HOWEVER, AT ABOUT THIS TIME IT BECAME QUESTIONABLE WHETHER AN AUXILIARY CHANNEL WOULD, IN FACT, BE DUG. THE IOWA STATE HIGHWAY COMMISSION, WISHING TO START EARLY CONSTRUCTION OF I-29 IN THE SIOUX CITY AREA, CONTACTED THE CORPS OF ENGINEERS AND WAS ADVISED IN LETTER OF OCTOBER 23, 1956, BY THE OMAHA DISTRICT OFFICE THAT:

THE PROPOSED PLAN PROVIDES FOR THE UTILIZATION OF THE EXISTING CONCRETE LINED CHANNEL IN THE LOWER MILE OF THE FLOYD RIVER AND FOR CONSTRUCTION OF AN AUXILIARY CHANNEL EAST OF THE EXISTING CHANNEL TO CONVEY THE EXCESS OF FLOOD-WATERS. THE LAYOUT OF THE TWO CHANNELS, THE DIMENSIONS OF THE EXISTING CHANNEL, AND THE TENTATIVE DIMENSIONS OF THE AUXILIARY CHANNEL ARE GIVEN IN THE ENCLOSED PLATES 3, 4, AND 6. THIS PLAN HAS NOT BEEN FINALIZED, HOWEVER. WE HAVE AGREED, AT THE REQUEST OF LOCAL INTERESTS, THAT DURING THE FINAL DESIGN STUDIES BEFORE CONSTRUCTION OF THE PROJECT WE WILL GIVE CAREFUL CONSIDERATION TO ELIMINATING THE AUXILIARY CHANNEL AND PROVIDING A SINGLE LARGE CHANNEL ON THE ALIGNMENT OF THE EXISTING CHANNEL. CONSEQUENTLY, WE ARE NOT SURE AT THIS TIME WHETHER ONE OR TWO BRIDGES WILL BE NEEDED FOR THE ROUTE NO. 3 CROSSING OF THE FLOOD RIVER.

BECAUSE OF THE UNCERTAINTY AS TO THE FLOOD CONTROL PLAN, THE LOCAL PREFERENCE FOR A SINGLE CHANNEL, AND THE NEED FOR PROVIDING A WATERWAY OF SUFFICIENT SIZE TO CARRY MAXIMUM FLOOD WATERS IN THE EXISTING CHANNEL IN THE EVENT THE FINAL DECISION WAS NOT TO PROVIDE AN AUXILIARY CHANNEL OR IF A FLOOD CONTROL PROJECT WAS NOT CONSTRUCTED, THE STATE PLANNED AND CONSTRUCTED I-29 AS A FEDERAL-AID INTERSTATE PROJECT WITH A BRIDGE (TWIN BRIDGED) DESIGNED TO ALLOW FULL FLOOD DISCHARGE AT THE EXISTING CHANNEL. AT THE SAME TIME THE STATE IN ITS PLANS KEPT THE PROFILE SOUTH OF THE EXISTING CHANNEL HIGH SO THAT IN THE EVENT THE FLOOD CONTROL PROJECT PROCEEDED IN ACCORDANCE WITH THE MAY 3 PLAN (H. DOC. 417), IT WOULD BE POSSIBLE TO CONSTRUCT A SECOND BRIDGE (TWIN BRIDGES) FOR THE PROPOSED AUXILIARY CHANNEL DOWNSTREAM WITHOUT CHANGING THE PROFILE. ON DECEMBER 30, 1957, THE SIOUX CITY COUNCIL BY RESOLUTION APPROVED THE STATE'S PLANS FOR THE SECTION OF I-29 WHICH INCLUDED THE BRIDGE (TWIN BRIDGES) OVER THE EXISTING CHANNEL OF THE FLOYD RIVER; THE CONTRACT PLANS PREPARED BY THE STATE WERE APPROVED BY THE BUREAU OF PUBLIC ROADS ON SEPTEMBER 29, 1958; CONSTRUCTION OF THE BRIDGE (TWIN BRIDGES) WAS STARTED ON NOVEMBER 12, 1958; AND THE PROJECT WAS COMPLETED ON NOVEMBER 18, 1959. THE ENTIRE PORTION OF I-29 IN THE SIOUX CITY AREA WAS COMPLETED, WITH A BRIDGE (TWIN BRIDGES) OVER THE EXISTING CHANNEL ONLY, IN 1960.

BUT ON JULY 1, 1959, THE CORPS OF ENGINEERS HAD PRESENTED TO SIOUX CITY OFFICIALS A REVISED PLAN FOR THE FLOOD CONTROL PROJECT. THE STATE AND THE BUREAU OF PUBLIC ROADS HAD NO PRIOR KNOWLEDGE OF THIS REVISED PLAN WHICH ABANDONED THE MAY 3 PLAN AND ABANDONED UTILIZATION OF BOTH THE EXISTING CHANNEL AND THE AUXILIARY CHANNEL PROPOSED IN HOUSE DOCUMENT NO. 417. THE REVISED PLAN PROVIDES FOR A NEW CHANNEL ONE MILE TO THE NORTH OF THE EXISTING CHANNEL TO ACCOMMODATE THE FULL FLOOD FLOW, LEAVING THE EXISTING CHANNEL AS A LOCAL MINOR DRAINAGE STREAM. THE REQUIRED CONCURRENCE OF SEVERAL RAILROADS WAS OBTAINED IN MEETINGS ON JULY 22 AND AUGUST 19, 1959. WE UNDERSTAND THAT THE CITY ALSO CONCURRED. AS THE HIGHWAY APPROACHED THE LOCATION OF THE PROPOSED NEW CHANNEL THE CITY, BY LETTER DATED NOVEMBER 16, 1959, REQUESTED THE STATE HIGHWAY COMMISSION TO DELAY CONSTRUCTION OF THE HIGHWAY PENDING DEVELOPMENTS CONCERNING THE FLOOD CONTROL PROJECT. HOWEVER, THIS WAS NOT DONE.

INTERSTATE HIGHWAY 29 HAS BEEN COMPLETED AT THE LOCATION OF THE PROPOSED NEW CHANNEL AND THE QUESTION RAISED CONCERNS THE RESPONSIBILITY FOR PROVIDING A BRIDGE WHEN THE CHANNEL AT THE NEW LOCATION IS DUG. THAT IS TO SAY CAN FEDERAL-AID HIGHWAY FUNDS PARTICIPATE IN FINANCING THE COST OF CONSTRUCTING SUCH BRIDGE NOTWITHSTANDING THE REQUIREMENT OF PUBLIC LAW 85- 500 AND HOUSE DOCUMENT NO. 417 THAT LOCAL INTERESTS MAKE WITHOUT COST TO THE UNITED STATES ALL BRIDGE ADDITIONS NECESSITATED BY FLOOD CONTROL PROJECT?

YOUR DEPARTMENT HAS TAKEN THE POSITION THAT FEDERAL-AID HIGHWAY FUNDS MAY NOT PARTICIPATE IN THE CONSTRUCTION OF THE REQUIRED BRIDGE. ITS POSITION IS BASED UPON (1) THE LANGUAGE CONTAINED IN HOUSE DOCUMENT NO. 417 PRECLUDING THE USE OF UNITED STATES FUNDS FOR ANY BRIDGES NECESSITATED BY THE FLOOD CONTROL PROJECT, (2) THE FACT THAT SINCE THE HIGHWAY WAS SUBSTANTIALLY COMPLETED PRIOR TO THE DEVELOPMENT OF THE PRESENT FLOOD CONTROL PLANS, THE COST OF ANY ALTERATION REQUIRED IS ATTRIBUTABLE TO AND THE RESPONSIBILITY OF THE FLOOD CONTROL PROJECT RATHER THAN THE HIGHWAY PROJECT, AND (3) THE FACT THAT LOCAL OFFICIALS HAD APPROVED THE HIGHWAY PLANS CALLING FOR A BRIDGE (TWIN BRIDGES) OVER THE EXISTING CHANNEL OF SUBSTANTIALLY GREATER COST THAN WOULD HAVE BEEN REQUIRED HAD IT BEEN KNOWN THAT THE EXISTING CHANNEL WAS NOT TO CARRY THE FLOOD WATERS.

HOWEVER, SIOUX CITY OFFICIALS HAVE INSISTENTLY PROTESTED YOUR DEPARTMENT'S CONCLUSIONS IN THE MATTER, AND THEY ARGUE THAT THERE IS NO LEGAL IMPEDIMENT TO FEDERAL-AID HIGHWAY FUNDS PARTICIPATING IN THE CONSTRUCTION COSTS INVOLVED. IN VIEW OF THE IMPACT CONSTRUCTION OF THE REQUIRED BRIDGE WILL HAVE ON LOCAL FINANCIAL RESOURCES IF THE CITY IS REQUIRED TO FINANCE THE STRUCTURE, AND OF THE DETERMINED STAND THE CITY HAS TAKEN WITH RESPECT TO THE CORRECTNESS OF ITS POSITION, YOUR DEPARTMENT AGREED TO SUBMIT THE MATTER FOR OUR CONSIDERATION WITH THE UNDERSTANDING THAT, SHOULD WE DETERMINE THE CITY'S VIEWS TO BE CORRECT- - THAT FEDERAL- AID HIGHWAY FUNDS MAY PROPERLY PARTICIPATE IN FINANCING CONSTRUCTION OF THE BRIDGE--- THE DEPARTMENT WILL AUTHORIZE THE USE OF FEDERAL-AID PRIMARY SYSTEM FUNDS ON A 50-50 MATCHING BASIS IN CONNECTION WITH THE PROJECT.

IN LETTER DATED SEPTEMBER 21, 1961, THE CHIEF ENGINEER OF THE IOWA HIGHWAY COMMISSION HAD THESE COMMENTS CONCERNING THE CITY'S REQUEST THAT COMPLETION OF THE INTERSTATE HIGHWAY BE DELAYED PENDING DEVELOPMENTS CONCERNING THE FLOOD CONTROL PROJECT:

* * * WHEN THE CITY OF SIOUX CITY SUGGESTED THE WORK ON THE INTERSTATE NEAR THE WALL STREET INTERCHANGE BE STOPPED NOVEMBER 16, 1959, THERE WAS NO ASSURANCE WHEN THE FLOYD RIVER FLOOD CONTROL PROJECT WOULD BE CONSTRUCTED. CONGRESS HAD NOT AUTHORIZE FUNDS FOR CONSTRUCTION AT THAT TIME. THEY HAD NOT BEEN AUTHORIZED AS OF MAY 7, 1960, BUT WERE ALLOCATED DURING THE NEXT FEW MONTHS. THE WORK SOUTH OF THE WALL STREET INTERCHANGE WAS COMPLETED EXCEPT FOR A SHORT SECTION OF PAVEMENT. IT WAS NOT CONSIDERED REASONABLE TO DELAY THE USE OF THE INTERSTATE SYSTEM FROM SIOUX CITY SOUTH WHEN A VERY MINOR EXPENDITURE OF FUNDS (APPROXIMATELY $15,000 FOR PAVING) WOULD COMPLETE THIS SECTION. IT WAS PLACED IN SERVICE FROM THE BIG SIOUX RIVER TO SLOAN ON JULY 15, 1960.

AT THE TIME THE CITY REQUESTED THE WORK STOPPED, CONGRESS HAD NOT APPROPRIATED ANY CONSTRUCTION FUNDS AND THE CITY WAS NOT SURE THEY WOULD BE ABLE TO BUILD THE PROJECT. THERE WAS THE QUESTION OF THE NEED OF AN ELECTION BEFORE LOCAL BONDS COULD BE ISSUED FOR CONSTRUCTION. AT THE TIME THE CITY REQUESTED THE BRIDGE BE CONSTRUCTED IN 1960, PLANS WERE NOT AVAILABLE TO GIVE THE FINAL LOCATION OF THE CROSSING. APPROVAL BY THE CITY OF SIOUX CITY OF THE FINAL LOCATION WAS JUNE 26, 1961.

CONCERNING BRIDGES IN CONNECTION WITH THE FLOYD RIVER FLOOD CONTROL PROJECT, HOUSE DOCUMENT NO. 417, DATED JUNE 6, 1956, CONTAINS THE FOLLOWING (PAGE 32):

* * * PROVISION AT NON-FEDERAL EXPENSE OF ALL NEW HIGHWAYS AND ROAD BRIDGES OR ALTERATION OF SUCH BRIDGES, INCLUDING APPROACHES, MADE NECESSARY BY THE IMPROVEMENT (FLOOD CONTROL PROJECT) * * *. ( ITALICS SUPPLIED.)

ALSO IN THE SAME CONNECTION, PAGE 46 OF THE HOUSE DOCUMENT, UNDER THE HEADING "XII RECOMMENDATIONS," CONTAINS THIS LANGUAGE:

* * * PERFORM WITHOUT COST TO THE UNITED STATES ALL NECESSARY ROAD, HIGHWAY, HIGHWAY BRIDGE, AND UTILITY ALTERATIONS AND ADDITIONS * * *. ( ITALICS SUPPLIED.)

WHILE REFERENCE IS MADE ON PAGE 30 OF THE HOUSE DOCUMENT TO NEW BRIDGES AND BRIDGE ALTERATIONS ON THEN EXISTING STREETS AND HIGHWAYS, THE ABOVE- QUOTED LANGUAGE FROM THE HOUSE DOCUMENT IS VERY BROAD AND IS NOT RESTRICTED TO BRIDGES OR BRIDGE ALTERATIONS ON THEN EXISTING ROADS. BUT ALTHOUGH THE LANGUAGE OF HOUSE DOCUMENT NO. 417 WOULD THUS, IN ITSELF, APPEAR TO PRECLUDE THE USE OF ANY FEDERAL FUNDS, INCLUDING THOSE OF THE FEDERAL-AID HIGHWAY PROGRAM, FOR CONSTRUCTION OF THE BRIDGE NECESSITATED BY THE FLOOD CONTROL PROJECT, THERE ARE OTHER REASONS WHY FEDERAL-AID HIGHWAY FUNDS WOULD NOT BE AVAILABLE FOR THE BRIDGE. THERE CAN BE NO QUESTION BUT THAT THE STATE OF IOWA ACTED LEGALLY IN COMPLETING CONSTRUCTION OF I-29 THROUGH THE FLOOD CONTROL AREA. I-29 HAVING BEEN LEGALLY INSTALLED, AND CURRENTLY SERVING THE HIGHWAY PURPOSES FOR WHICH IT WAS CONSTRUCTED, IT COULD NOT PROPERLY BE SAID THAT ANY CHANGE IN ITS CONFIGURATION TO ACCOMMODATE A FLOOD CONTROL PROJECT IS NECESSARY FOR HIGHWAY PURPOSES. WE DO NOT CONSIDER THAT THERE IS ANY AUTHORITY IN FEDERAL-AID HIGHWAY LEGISLATION TO EXPEND HIGHWAY FUNDS TO MEET THE NEEDS OF OTHER PUBLIC WORKS PROGRAMS, NOTWITHSTANDING THAT SUCH OTHER PROGRAMS MAY ALSO BE FINANCED IN WHOLE OR IN PART WITH FEDERAL FUNDS. WHERE A HIGHWAY PROJECT HAS PROCEEDED TO THE POINT AT WHICH ALL THAT REMAINS FOR ITS COMPLETION CONSISTS OF LAYING THE ACTUAL ROADBED AND THERE HAS BEEN NO BASIS UPON WHICH THE HIGHWAY AUTHORITIES COULD HAVE BEEN LEGALLY PRECLUDED FROM PROGRESSING TO THAT STAGE OR FROM COMPLETING THEIR PROJECT ACCORDING TO PLAN, IT IS CLEAR THAT ANY ACCOMMODATION OF HIGHWAY PLANS AT THAT TIME OR ANY CHANGE IN THE HIGHWAY AFTER ITS COMPLETION IS SOLELY FOR OTHER THAN HIGHWAY PURPOSES.

ACCORDINGLY, IT IS OUR VIEW THAT FEDERAL-AID HIGHWAY FUNDS MAY NOT PARTICIPATE IN THE CONSTRUCTION OF THE BRIDGE IN QUESTION.

AS REQUESTED, THERE IS RETURNED HEREWITH YOUR DEPARTMENT'S FILE IN THE MATTER.