B-152193, SEP. 10, 1963

B-152193: Sep 10, 1963

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TO THE SECRETARY OF THE INTERIOR: THIS IS IN RESPONSE TO A LETTER DATED AUGUST 2. SECTION 207 OF THE FLOOD CONTROL ACT OF 1960 WAS AMENDED TO APPLY TO WATER RESOURCES PROJECTS OF THE BUREAU OF RECLAMATION. THE DESCRIPTION OF WATER RESOURCES PROJECTS WITHIN THE PURVIEW OF THE SECTION WAS ODIFIED: THE PHRASE "UNDER CONSTRUCTION OR TO BE CONSTRUCTED" WAS REPLACED BY THE PHRASE "TO BE CONSTRUCTED IN THE FUTURE.'. INCLUDES PROJECTS PRESENTLY UNDER CONSTRUCTION WHERE ROAD RELOCATIONS OR IDENTIFIABLE COMPONENTS THEREOF ARE NOT COMPLETE AS OF THE DATE OF THIS SECTION.'. THUS SOME OF THE WORK TO BE PERFORMED UNDER THE RELOCATION AGREEMENT WAS ACTUALLY UNDER CONSTRUCTION ON OCTOBER 23. WHICH IS $313.

B-152193, SEP. 10, 1963

TO THE SECRETARY OF THE INTERIOR:

THIS IS IN RESPONSE TO A LETTER DATED AUGUST 2, 1963, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE DEPARTMENT OF THE INTERIOR, INQUIRING AS TO THE PROPER APPLICATION OF SECTION 207 OF THE FLOOD CONTROL ACT OF 1960, AS AMENDED (33 U.S.C. 701R-1 (SUPP. IV) (, IN THE SITUATION RELATED HEREAFTER, INVOLVING THE MODIFICATION OF U.S. HIGHWAY NO 383 IN THE STATE OF KANSAS, NECESSITATED BY THE CONSTRUCTION OF NORTON DAM AND RESERVOIR, PART OF THE MISSOURI RIVER BASIN PROJECT OF THE BUREAU OF RECLAMATION.

WHEN, IN CONNECTION WITH FEDERAL WATER RESOURCES PROJECTS, THE TAKING OF AN EXISTING PUBLIC ROAD NECESSITATES REPLACEMENT, SECTION 207 OF THE FLOOD CONTROL ACT OF 1960 AUTHORIZES THE USE OF A MORE LIBERAL "REPLACEMENT IN KIND" FORMULA THAN THAT WHICH, IN THE ABSENCE OF LEGISLATION, HAD BEEN ADMINISTRATIVELY CONSIDERED AUTHORIZED. AS ORIGINALLY ENACTED, SECTION 207 APPLIED TO WATER RESOURCES PROJECTS, "UNDER CONSTRUCTION OR TO BE CONSTRUCTED," OF THE CORPS OF ENGINEERS. BY AN ACT OF OCTOBER 23, 1962, (PUB.L. 87-874, SEC. 208, 76 STAT. 1196), SECTION 207 OF THE FLOOD CONTROL ACT OF 1960 WAS AMENDED TO APPLY TO WATER RESOURCES PROJECTS OF THE BUREAU OF RECLAMATION. ALSO, THE DESCRIPTION OF WATER RESOURCES PROJECTS WITHIN THE PURVIEW OF THE SECTION WAS ODIFIED: THE PHRASE "UNDER CONSTRUCTION OR TO BE CONSTRUCTED" WAS REPLACED BY THE PHRASE "TO BE CONSTRUCTED IN THE FUTURE.' MOREOVER, THE OCTOBER 1962 AMENDMENT DEFINES THE TERM "WATER RESOURCES PROJECTS TO BE CONSTRUCTED IN THE FUTURE" AS INCLUDING "ALL PROJECTS NOT YET ACTUALLY UNDER CONSTRUCTION, AND, TO THE EXTENT OF WORK REMAINING TO BE COMPLETED, INCLUDES PROJECTS PRESENTLY UNDER CONSTRUCTION WHERE ROAD RELOCATIONS OR IDENTIFIABLE COMPONENTS THEREOF ARE NOT COMPLETE AS OF THE DATE OF THIS SECTION.'

ON MAY 18, 1962, PRIOR TO THE STATUTORY AMENDMENT OF OCTOBER 1962, THE BUREAU OF RECLAMATION AND THE STATE HIGHWAY COMMISSION OF KANSAS ENTERED INTO AN AGREEMENT FOR THE RELOCATION OF U.S. HIGHWAY NO. 383, NECESSITATED BY THE CONSTRUCTION OF THE NORTON DAM. THE RELOCATION AGREEMENT PROVIDES THAT THE UNITED STATES SHALL PAY THE STATE HIGHWAY COMMISSION AN ESTIMATED COST OF $935,000 FOR THE RELOCATION OF THE HIGHWAY AND THAT THE COMMISSION SHALL ASSUME AN ADDITIONAL ESTIMATED, BUT FIRM, AMOUNT OF $249,282 FOR ROUTE LOCATION AND $64,000 FOR ENGINEERING BETTERMENTS FOR CERTAIN FACILITIES CONSTRUCTED TO CURRENT STANDARDS OF THE STATE.

PURSUANT TO THE RELOCATION AGREEMENT OF MAY 18, 1962, THE HIGHWAY COMMISSION ON JUNE 27, 1962, AWARDED CONSTRUCTION CONTRACTS FOR A RAILROAD OVERPASS, AND THE ASSOCIATED GRADING AND SEEDING WORK. THUS SOME OF THE WORK TO BE PERFORMED UNDER THE RELOCATION AGREEMENT WAS ACTUALLY UNDER CONSTRUCTION ON OCTOBER 23, 1962, WHEN THE AMENDMENT EXTENDING SECTION 207 TO BUREAU OF RECLAMATION PROJECTS BECAME EFFECTIVE; HOWEVER, NONE OF THE CONSTRUCTION CONTRACTS HAD THEN BEEN COMPLETED. BUT FOR DOUBT AS TO THE EXTENSION OF THE BENEFITS OF SECTION 207, AS AMENDED, TO THE WORK PERFORMED UNDER THE CONTRACTS LET BEFORE THE EFFECTIVE DATE OF THE 1962 AMENDMENT, IT APPEARS THE COSTS ALLOTTED TO THE STATE HIGHWAY COMMISSION BY THE RELOCATION AGREEMENT MAY BE FOR ASSUMPTION BY THE UNITED STATES, THAT THE "STATE HIGHWAY COMMISSION OF KANSAS COULD BE ENTITLED TO PAYMENT FOR THE ENTIRE AMOUNT CLAIMED, WHICH IS $313,282.'

APROPOS OF THE DOUBT ENTERTAINED REGARDING THE APPLICABILITY OF SECTION 207, AS AMENDED, TO THE WORK PERFORMED UNDER THE CONSTRUCTION CONTRACTS LET BEFORE THE EFFECTIVE DATE OF THE 1962 AMENDMENT, THE ADMINISTRATIVE ASSISTANT SECRETARY INQUIRES WHETHER THE BUREAU OF RECLAMATION SHOULD ASSUME THE FULL CONSTRUCTION COSTS, THE CONSTRUCTION COSTS OF ONLY THOSE PORTIONS OF THE WORK REMAINING TO BE DONE AFTER THE 1962 AMENDMENT WENT INTO EFFECT, OR NONE OF THE CONSTRUCTION COSTS UNDER THE CONTRACTS AWARDED BEFORE THE EFFECTIVE DATE OF THE AMENDMENT.

IN A DECISION OF JUNE 15, 1961, 40 COMP. GEN. 697, REFERRED TO IN THE LETTER OF THE ADMINISTRATIVE ASSISTANT SECRETARY, THERE WAS INVOLVED THE APPLICATION OF SECTION 207, AS ORIGINALLY ENACTED, TO CONSTRUCTION CONTRACTS STILL TO BE AWARDED FOR WORK CONTEMPLATED BY RELOCATION AGREEMENTS ENTERED INTO PRIOR TO THE FLOOD CONTROL ACT OF 1960. IN THAT DECISION WE STATED THAT THE STATUS OF THE RELOCATION WORK RATHER THAN WHETHER OR NOT A RELOCATION AGREEMENT WAS SIGNED CONTROLLED APPLICATION OF SECTION 207, AND CONCLUDED THAT "THE CHIEF OF ENGINEERS IS AUTHORIZED TO MODIFY THE RELOCATION AGREEMENTS WITH THE STATE OF OKLAHOMA TO INCLUDE BENEFITS OF SECTION 207 (B) OF THE FLOOD CONTROL ACT OF 1960, WHERE CONSTRUCTION CONTRACTS ARE STILL TO BE AWARDED ON WORK CONTEMPLATED BY THE RELOCATION AGREEMENTS.' HEREIN WE ARE CONCERNED WITH THE APPLICATION OF SECTION 207, AS AMENDED, THE RELOCATION AGREEMENT AND THE CONSTRUCTION CONTRACTS HAVING BEEN ENTERED INTO PRIOR TO THE DATE OF THE APPLICABILITY OF THE SECTION TO BUREAU OF RECLAMATION WATER RESOURCES PROJECTS.

AS WE READ THE CURRENT SECTION 207 IT CLEARLY REFLECTS THE CONCEPT THAT IN THE EXTENSION OF ITS BENEFITS, THE STATUS OF THE WORK IS CONTROLLING, IRRESPECTIVE OF THE EXISTENCE OF A PRIOR RELOCATION AGREEMENT. FURTHERMORE, THE DEFINITION OF "WATER RESOURCES PROJECTS TO BE CONSTRUCTED IN THE FUTURE" DEFINES THE WORK STATUS FOR THE APPLICATION OF THE SECTION, AND THAT DEFINITION IS DETERMINATIVE OF THE QUESTION SUBMITTED.

BY DEFINITION, THE TERM "WATER RESOURCES PROJECTS TO BE CONSTRUCTED IN THE FUTURE" INCLUDES PROJECTS PRESENTLY UNDER CONSTRUCTION "WHERE ROAD RELOCATIONS OR IDENTIFIABLE COMPONENTS THEREOF ARE NOT COMPLETE AS OF THE DATE OF THIS SECTION.' WE VIEW THE REFERENCE,"THE DATE OF THIS SECTION," AS REFERRING TO OCTOBER 23, 1962, THE EFFECTIVE DATE OF THE ACT AMENDING SECTION 207 TO EXTEND ITS BENEFITS TO BUREAU OF RECLAMATION PROJECTS. ADDITION TO THE LIMITATION "WHERE ROAD RELOCATIONS OR IDENTIFIABLE COMPONENTS THEREOF ARE NOT COMPLETE AS OF THE DATE OF THIS SECTION," THE DEFINITION CONTAINS A FURTHER LIMITATION, THAT SUCH PROJECTS ARE INCLUDED ONLY "TO THE EXTENT OF WORK REMAINING TO BE COMPLETED.' THE LATTER LIMITATION, IN THE CONTEXT IN WHICH IT IS USED, NECESSARILY INCLUDES ROAD RELOCATION WORK; THAT IS, TO THE EXTENT OF SUCH WORK REMAINING TO BE DONE WHERE A ROAD RELOCATION OR IDENTIFIABLE COMPONENT THEREOF WAS NOT COMPLETE AS OF THE PASSAGE OF THE 1962 AMENDMENT. CONSEQUENTLY, WE MUST REJECT THE VIEW APPARENTLY ENTERTAINED BY THE STATE HIGHWAY COMMISSION OF KANSAS, THAT THE BENEFITS OF SECTION 207, AS AMENDED, ARE TO BE EXTENDED TO ALL THE ROAD RELOCATION WORK OF U.S. HIGHWAY NO. 383, WHETHER PERFORMED BEFORE OR AFTER THE ACT OF OCTOBER 23, 1962.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT THE ROAD RELOCATION AGREEMENT WITH THE STATE HIGHWAY COMMISSION OF KANSAS, ENTERED INTO MAY 18, 1962, MAY BE MODIFIED ONLY TO EXTEND THE BENEFITS OF SECTION 207, AS AMENDED, TO THE ROAD RELOCATION WORK REMAINING TO BE DONE ON OCTOBER 23, 1962, THE EFFECTIVE DATE OF THE AMENDATORY ACT BRINGING BUREAU OF RECLAMATION WATER RESOURCES PROJECTS WITHIN THE PURVIEW OF SECTION 207.