B-169174, MAR 25, 1971, 50 COMP GEN 661

B-169174, MAR 25, 1971, 50 COMP GEN 661

HIGHWAYS - CONSTRUCTION - FEDERAL-AID HIGHWAY PROGRAMS - RELOCATION COSTS - REPLACEMENT TO BE SIMILAR DESIGN AS THE REPLACEMENT HIGHWAY BRIDGE OVER THE CROSS-FLORIDA BARGE CANAL IS REQUIRED TO BE CONSTRUCTED IN ACCORDANCE WITH SECTION 207(C), PUBLIC LAW 87-874, OCTOBER 23, 1962, WHICH LIMITS CONSTRUCTION OF A REPLACEMENT FACILITY TO THE STATE DESIGN STANDARDS THAT APPLY TO ROADS OF THE SAME CLASSIFICATION, DETERMINED ON THE BASIS OF TRAFFIC EXISTING AT THE TIME OF THE TAKING, THE APPROVAL BY THE CORPS OF ENGINEERS OF TWO TWO-LANE BRIDGES TO BE CONSTRUCTED AT GOVERNMENT EXPENSE IN LIEU OF THE EXISTING TWO-LANE HIGHWAY IN ORDER TO ACCOMMODATE FUTURE GROWTH CONSTITUTES A BETTERMENT OF THE FACILITY IN CONTRAVENTION OF SECTION 207(C) AND, THEREFORE, THE FUNDS AVAILABLE TO THE CORPS MAY NOT BE USED TO CONSTRUCT THE SECOND BRIDGE, WHETHER OR NOT THE DESIGN STANDARD WAS IN ACTUAL PRACTICE OR PUBLISHED. HOWEVER, STATE STANDARDS THAT PROVIDE FOR A RANGE OF TRAFFIC RATHER THAN PROJECTED FUTURE TRAFFIC ARE ACCEPTABLE.

TO THE SECRETARY OF THE ARMY, MARCH 25, 1971:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 4, 1970, FROM MR. ROBERT E. JORDAN, III, SPECIAL ASSISTANT TO THE SECRETARY OF THE ARMY (CIVIL FUNCTIONS), REPLYING TO OUR LETTER TO YOU OF MARCH 19, 1970, CONCERNING THE CROSS-FLORIDA BARGE CANAL PROJECT. IN OUR LETTER OF MARCH 19, WE QUESTIONED THE AUTHORITY OF THE CORPS OF ENGINEERS TO CONSTRUCT WITH FEDERAL FUNDS A SECOND TWO-LANE BRIDGE FOR U.S. HIGHWAY NO. 19, STATE ROAD 55, WHERE THAT HIGHWAY CROSSES OVER THE CANAL.

THE FACTS WHICH CONSTITUTED THE BASIS FOR OUR INQUIRY ARE AS FOLLOWS:

THE CROSS-FLORIDA BARGE CANAL (CFBC) PROJECT WAS AUTHORIZED BY PUBLIC LAW 675, 77TH CONGRESS, APPROVED JULY 23, 1942, 56 STAT. 703, 15 U.S.C. PREC. 715 WHICH PROVIDED FOR THE CONSTRUCTION OF A HIGH-LEVEL LOCK BARGE CANAL FROM THE SAINT JOHN RIVER ACROSS FLORIDA TO THE GULF OF MEXICO IN ACCORDANCE WITH PLANS SET FORTH IN A LETTER OF THE CHIEF OF ENGINEERS DATED JUNE 15, 1942. THIS LETTER SUBSEQUENTLY WAS PUBLISHED IN HOUSE DOCUMENT NO. 109 OF THE 79TH CONGRESS.

BY LETTER OF JUNE 17, 1964, THE FLORIDA STATE ROAD DEPARTMENT SUBMITTED TO THE CANAL AUTHORITY OF THE STATE OF FLORIDA (THE AGENCY EMPOWERED BY THE STATE TO ACT AS THE OFFICIAL LOCAL COOPERATIVE AGENCY FOR THE PROJECT) A PROPOSED MEMORANDUM OF AGREEMENT BETWEEN THE CANAL AUTHORITY OF THE STATE OF FLORIDA (THEREIN REFERRED TO AS THE CORPORATION) AND THE FLORIDA STATE ROAD DEPARTMENT RELATIVE TO CERTAIN PROPOSED MODIFICATIONS WHICH WERE CONTEMPLATED WHERE THE CFBC INTERSECTS AND CROSSES THE RIGHT-OF-WAY OF U.S. HIGHWAY NO. 19, STATE ROAD 55, CITRUS COUNTY, FLORIDA.

PERTINENT PROVISIONS OF THE PROPOSED MEMORANDUM OF AGREEMENT WERE AS FOLLOWS:

2. DEVELOP OR CAUSE TO BE DEVELOPED COMPLETE CONSTRUCTION PLANS AND SPECIFICATIONS, ACCEPTABLE TO THE DEPARTMENT, COMMENSURATE WITH STANDARD DEPARTMENT SPECIFICATIONS AND DESIGN CRITERIA, WHICH BY REFERENCE BECOMES A PART THEREOF, FOR THE CONSTRUCTION OF A TWO-LANE HIGHWAY AND HIGH LEVEL BRIDGE AND APPURTENANCES OVER THE PROPOSED BARGE CANAL, SAID PLANS TO BE ADAPTABLE TO AN ULTIMATE FOUR-LANE SECTION *** .

6. THE CORPORATION ALSO AGREES THAT AT SUCH TIME AS THE DEPARTMENT DEEMS IT NECESSARY TO FOUR-LANE STATE ROAD 55 WITHIN THE LIMITS OF THIS PROJECT, THE CORPORATION WILL CONSTRUCT, OR CAUSE TO BE CONSTRUCTED, THE ADDITIONAL ROADWAY AND HIGH LEVEL BRIDGE AND BRIDGE APPURTENANCES AND RELATED STRUCTURES WITHIN THE LIMITS OF THE PROJECT AT NO COST TO THE DEPARTMENT.

THE MANAGER, CANAL AUTHORITY, SUBMITTED THE PROPOSED AGREEMENT TO THE DISTRICT ENGINEER, JACKSONVILLE DISTRICT CORPS OF ENGINEERS, ON JUNE 19, 1964, FOR HIS COMMENTS. BY LETTER DATED JUNE 24, 1964, THE JACKSONVILLE DISTRICT OFFICE COMMENTED ON THE PROPOSED MEMORANDUM AGREEMENT, IN PART, AS FOLLOWS:

THE MOST OBJECTIONABLE LANGUAGE IS CONTAINED IN SUBPARAGRAPH 6 ON PAGE 2, WHICH, IN ESSENCE, WOULD COMMIT THE CANAL AUTHORITY TO BUILD AN ADDITIONAL HIGH-LEVEL BRIDGE AND ROADWAY WITHOUT COST TO THE STATE ROAD DEPARTMENT WHEN AND IF THE DEPARTMENT DEEMS IT NECESSARY TO FOUR-LANE STATE ROAD 55. ON THE ASSUMPTION THAT THE CANAL AUTHORITY WOULD NOT DESIRE TO COMMIT ITSELF ON A BRIDGE MATTER THAT ORDINARILY WOULD BE AT PROJECT COST. WILL ELABORATE ON THE FEDERAL RESPONSIBILITIES. THE AUTHORITY AND OBLIGATION OF THE FEDERAL GOVERNMENT TO RELOCATE HIGHWAYS MADE NECESSARY BY THE CONSTRUCTION OF A PROJECT ARE CONTAINED IN THE PROJECT DOCUMENT AND IN PARAGRAPH 207(B), PUBLIC LAW 86-645, APPROVED JULY 14, 1960, WHICH IS QUOTED HEREIN.

"THAT, FOR SUCH WATER RESOURCES PROJECT, UNDER CONSTRUCTION OR TO BE CONSTRUCTED, WHEN THE TAKING BY THE FEDERAL GOVERNMENT OF AN EXISTING PUBLIC ROAD NECESSITATES REPLACEMENT, THE SUBSTITUTE PROVIDED WILL AS NEARLY AS PRACTICABLE SERVE IN THE SAME MANNER AND REASONABLY AS WELL AS THE EXISTING ROAD. THE CHIEF OF ENGINEERS IS AUTHORIZED TO CONSTRUCT SUCH SUBSTITUTE ROADS TO DESIGN STANDARDS COMPARABLE TO THOSE OF THE STATE IN WHICH THE ROAD IS LOCATED, FOR ROADS OF THE SAME CLASSIFICATION AS THE ROAD BEING REPLACED. THE TRAFFIC EXISTING AT THE TIME OF THE TAKING SHALL BE USED IN THE DETERMINATION OF THE CLASSIFICATION."

IN THIS INSTANCE THE WORDS "FOR ROADS OF THE SAME CLASSIFICATION AS THE ROAD BEING REPLACED," AND "THE TRAFFIC EXISTING AT THE TIME OF TAKING SHALL BE USED IN THE DETERMINATION OF THE CLASSIFICATION" ARE THE KEY TO THE PROBLEM HEREIN. THE CASE IS SOMEWHAT SIMILAR TO CASE B 144887, DATED 16 MARCH 1961, DECISIONS OF THE COMPTROLLER GENERAL (40 COMP. GEN. 520), WHICH PERTAINED TO WHETHER THE CORPS OF ENGINEERS WAS RESPONSIBLE FOR CONSTRUCTING A RELOCATION TO INTERSTATE STANDARDS, AND ESTABLISHED GUIDELINES WHICH WE FOLLOW. IN THE INSTANCE OF THE ROAD DISCUSSED HEREIN, U.S. 19, THE 1963 TRAFFIC COUNT FURNISHED BY THE STATE ROAD DEPARTMENT WAS 4,045 VEHICLES PER DAY WITH A PROJECTION OF 8,600 PER DAY IN 1985. THE STATE ROAD DEPARTMENT ROADWAY DESIGN MANUAL DOES NOT SPECIFICALLY COVER THE POINT OF TRAFFIC DENSITY ON A DAILY BASIS WHEN THEY GO FROM A TWO-LANE TO A FOUR-LANE FACILITY, BUT THEY HAVE INFORMED US THAT THEY ARE GUIDED BY THE AASHO DESIGN MANUAL WHICH STATES THAT FOR RURAL HIGHWAYS IN FLAT COUNTRY A FOUR-LANE HIGHWAY SHOULD BE PROVIDED FOR TRAFFIC COUNTS BETWEEN 5,000 AND 20,000 VEHICLES PER DAY. IT IS THE POLICY OF THE CORPS OF ENGINEERS TO CONSIDER THE TRAFFIC COUNT ON THE "DATE OF TAKING" WHICH TO OUR KNOWLEDGE, WILL NOT HAVE REACHED 5,000 VEHICLES PER DAY AT THAT TIME.

WE ARE COGNIZANT OF THE FACT THAT THE STATE ROAD DEPARTMENT HAS A FOUR- LANE PROGRAM FOR U.S. 19 AND IS ACTUALLY FOUR-LANING THE HIGHWAY SOME DISTANCE BOTH NORTH AND SOUTH OF THE PROJECT REFERRED TO IN ITS RESOLUTION, BUT WE DO NOT BELIEVE THAT THE STATE HAS ESTABLISHED ITS ENTITLEMENT TO A FOUR-LANE FACILITY AT THIS TIME. FURTHERMORE, WE ARE OF THE OPINION THAT THE TWO-LANE BRIDGE PROPOSED FOR U.S. HIGHWAY 19 IS ALL THAT CAN BE PROVIDED UNDER OUR REGULATIONS, AND THAT THE CROSS FLORIDA BARGE CANAL PROJECT CANNOT ASSUME ANY RESPONSIBILITY WHATSOEVER FOR THE ADDITIONAL BRIDGE THAT WOULD BE REQUIRED WHEN AND IF THE HIGHWAY IS FOUR- LANED IN THIS VICINITY.

BY LETTER OF OCTOBER 20, 1964, THE DISTRICT ENGINEER ADVISED THE STATE HIGHWAY ENGINEER, FLORIDA STATE ROAD DEPARTMENT, THAT THE PROPOSED MEMORANDUM OF AGREEMENT HAD BEEN REWRITTEN TO DELETE ANY REFERENCE TO THE DEVELOPMENT OF RIGHT-OF-WAY MAPS FOR AN ULTIMATE FOUR LANE, DIVIDED HIGHWAY, FOR THE REASON, THAT THIS REQUIREMENT EXCEEDS THAT FOR WHICH THE UNITED STATES IS LEGALLY RESPONSIBLE. HE ADVISED ALSO THAT PARAGRAPH 6 OF SECTION I HAD BEEN DELETED AS THIS PROVISION WAS CONTRARY TO FEDERAL LAW AND THAT TO AGREE TO PROVIDE A SECOND TWO LANE BRIDGE AT A LATER DATE WOULD BE A BETTERMENT.

THE STATE HIGHWAY ENGINEER REPLIED ON OCTOBER 27, 1964, IN PART, THAT AS THE STATE PRESENTLY HAD AMPLE RIGHT-OF-WAY TO ACCOMMODATE A PROPOSED FOUR- LANE HIGHWAY AND IT WAS THE INTENT TO BUILD SUCH FACILITY IN THE IMMEDIATE FUTURE, THE DEPARTMENT BELIEVED THAT THE CORPS OF ENGINEERS SHOULD PROVIDE FOR THE PROPOSED FOUR-LANE BRIDGE AT THAT TIME, OR SHOULD AGREE THAT AT SUCH TIME AS THE DEPARTMENT DEEMS IT NECESSARY TO FOUR-LANE STATE ROAD 55, THE CORPS WILL CONSTRUCT THE ADDITIONAL ROADWAY AND HIGH-LEVEL BRIDGE AT NO COST TO THE STATE.

THE DISTRICT ENGINEER AGAIN ADVISED THE STATE HIGHWAY ENGINEER ON NOVEMBER 2, 1964, THAT THE CORPS COULD ONLY PROVIDE FOR A REPLACEMENT OF THE EXISTING FACILITY IN ACCORDANCE WITH SECTION 207(B) OF PUBLIC LAW 86- 645.

THE DISTRICT ENGINEER ALSO ENCLOSED WITH HIS LETTER A COPY OF OUR DECISION OF MARCH 16, 1961, 40 COMP. GEN. 520, REFERRED TO ABOVE, AND STATED WITH RESPECT THERETO THAT:

*** THIS DECISION INDICATES THAT THE CHIEF OF ENGINEERS IS PRECLUDED FROM PARTICIPATION IN THE COST OF SUCH RELOCATION BEYOND THAT ESSENTIAL TO CONSTRUCTING A SUBSTITUTE HIGHWAY FOR TRAFFIC EXISTING AT THE TIME OF TAKING; AND FURTHERMORE, THE COMPTROLLER GENERAL FOUND THAT SECTION 207(B) IN PROVIDING FOR SUBSTITUTE ROADS "TO DESIGN STANDARDS COMPARABLE TO THOSE OF THE STATE IN WHICH THE ROAD IS LOCATED, FOR ROADS OF THE SAME CLASSIFICATION AS THE ROAD BEING REPLACED," RENDERS A "MANIFESTATION OF INTENT" POLICY OBSOLETE. WE REALIZE THAT THE COMPTROLLER GENERAL'S OPINION INCLOSED SPECIFICALLY DEALT WITH THE PROBLEM OF CONSTRUCTING U.S. HIGHWAY 30 IN OREGON TO INTERSTATE SYSTEM CRITERIA, BUT WE FEEL THAT IT BRINGS OUT VERY WELL THE PRINCIPLES INVOLVED IN THE CASE AT HAND. AGAIN I MUST STATE THAT THE CORPS OF ENGINEERS CAN ONLY PROVIDE A TWO-LANE FACILITY CROSSING THE CROSS FLORIDA BARGE CANAL ON STATE ROAD 55 (U.S. 19).

BECAUSE IT WAS APPARENT FROM THE EXCHANGE OF CORRESPONDENCE THAT AN AGREEMENT ON THE BRIDGE COULD NOT BE REACHED, THE DISTRICT ENGINEER REFERRED THE MATTER TO THE CHIEF OF ENGINEERS THROUGH THE DIVISION ENGINEER ON NOVEMBER 20, 1964, AND REQUESTED THAT THE POSITION OF THE JACKSONVILLE DISTRICT BE REVIEWED AND AN OPINION RENDERED SO THE FLORIDA STATE ROAD DEPARTMENT COULD BE NOTIFIED OF THE CORPS' FINAL POSITION.

BY FIRST INDORSEMENT, DATED DECEMBER 8, 1964, THE DIVISION ENGINEER CONCURRED IN THE POSITION OF THE DISTRICT ENGINEER THAT THE BASIS FOR REPLACEMENT SHOULD BE STRICTLY IN ACCORDANCE WITH SECTION 207(B).

HOWEVER, BY SECOND INDORSEMENT, DATED DECEMBER 28, 1964, THE CHIEF OF ENGINEERS ADVISED THE DIVISION ENGINEER AS FOLLOWS:

BASED ON A 1963 TRAFFIC COUNT OF 4,045 VEHICLES PER DAY, A 1964 TRAFFIC COUNT OF 4,400 VEHICLES PER DAY AND THE FLORIDA STATE ROAD DEPARTMENT STANDARDS OF GOOD ENGINEERING PRACTICE, IT IS DETERMINED THAT THE RELOCATED SEGMENT OF U.S. ROUTE 19 CROSSING THE CROSS FLORIDA BARGE CANAL NEAR INGLIS, FLORIDA SHOULD BE DESIGNED TO A FOUR-LANE CLASSIFICATION. THIS IS THE STANDARD TO WHICH THE STATE IS CURRENTLY REBUILDING THE ROAD, FURTHER NEGOTIATION WITH THE STATE ROAD DEPARTMENT SHOULD BE ON THAT BASIS.

ACCORDINGLY, ON JANUARY 5, 1965, THE JACKSONVILLE DISTRICT ENGINEER ADVISED THE STATE HIGHWAY ENGINEER OF THE CHIEF OF ENGINEERS' DETERMINATION THAT AN ADDITIONAL TWO-LANE BRIDGE COULD BE CONSTRUCTED AT A LATER DATE AS A PROJECT RESPONSIBILITY. HE ADVISED ALSO THAT ADVANCE NOTICE ON THE CONSTRUCTION OF THE FIRST TWO-LANE BRIDGE HAD BEEN ISSUED AND BIDS WOULD BE OPENED ON FEBRUARY 9, 1965. IN ORDER TO ALLOW FOR PHASING IN CONSTRUCTION OF THE SECOND TWO-LANE BRIDGE WITH THE ACTUAL WIDENING OF THIS HIGHWAY TO FOUR LANES, THE DISTRICT ENGINEER REQUESTED THAT THE CORPS BE FURNISHED A SCHEDULE FOR THIS HIGHWAY WORK.

BASED ON THE CHIEF OF ENGINEERS' DETERMINATION TO PROVIDE A SECOND TWO- LANE BRIDGE FOR U.S. HIGHWAY NO. 19, WHENEVER THE FLORIDA STATE ROAD DEPARTMENT DEEMS IT NECESSARY, THE DISTRICT ENGINEER EXECUTED CONTRACT NO. DA-08-123-CIVENG-65-70, DATED FEBRUARY 9, 1965, BETWEEN THE UNITED STATES OF AMERICA AND THE STATE ROAD DEPARTMENT OF FLORIDA WHICH PROVIDES, IN PART, FOR THE FOLLOWING:

ARTICLE 1. OBLIGATIONS OF THE GOVERNMENT. A. TO CONSTRUCT A TWO LANE HIGHWAY, INCLUDING HIGH LEVEL BRIDGE AND APPURTENANCES THERETO, IN ACCORDANCE WITH PLANS AND SPECIFICATIONS ATTACHED HERETO *** . THE FACILITIES PROVIDED FOR IN THIS PARAGRAPH SHALL BE HEREAFTER DESIGNATED AS THE "FIRST BRIDGE."

B. UPON COMPLETION OF THE FIRST BRIDGE AND UPON REQUEST BY THE OWNER TO COMMENCE, WITHIN A PERIOD OF ONE YEAR AFTER SUCH REQUEST OR WITHIN 120 MONTHS AFTER THE DATE OF THIS CONTRACT, WHICHEVER OCCURS FIRST, CONSTRUCTION OF A SECOND TWO-LANE HIGHWAY AND HIGH-LEVEL BRIDGE AND APPURTENANCES THERETO ALONG THE ROUTE INDICATED ON THE ATTACHED PLANS HEREINABOVE REFERRED TO, FOR THE PURPOSE OF FOUR-LANING STATE ROAD NO. 55 (U.S. HIGHWAY NO. 19); SAID CONSTRUCTION TO BE GENERALLY IN CONFORMITY WITH PLANS AND SPECIFICATIONS OF THE HIGH-LEVEL BRIDGE, APPURTENANCES, AND TWO-LANE HIGHWAY REFERRED TO AS THE FIRST BRIDGE. *** THE FACILITIES PROVIDED FOR IN THIS PARAGRAPH SHALL HEREINAFTER BE DESIGNATED THE "SECOND BRIDGE."

APPROXIMATELY 4 YEARS LATER ON APRIL 16, 1969, THE FLORIDA STATE ROAD DEPARTMENT ADVISED THE DISTRICT ENGINEER THAT THE STATE'S PRESENT SCHEDULE OF CONSTRUCTION CALLED FOR THE WIDENING OF STATE ROAD 55 TO FOUR LANES (U.S. HIGHWAY NO. 19) IN THE VICINITY OF THE CFBC IN FISCAL YEAR 1972-1973 BUT COULD BE REVISED TO FISCAL YEAR 1971-1972 IF FUNDS WERE AVAILABLE.

SECTION 207(B) OF PUBLIC LAW 86-645 WAS AMENDED AND RENUMBERED SECTION 207(C) BY PUBLIC LAW 87-874, APPROVED OCTOBER 23, 1962, AND NOW READS AS FOLLOWS (33 U.S.C. 701R-1(C)):

FOR WATER RESOURCES PROJECTS TO BE CONSTRUCTED IN THE FUTURE, WHEN THE TAKING BY THE FEDERAL GOVERNMENT OF AN EXISTING PUBLIC ROAD NECESSITATES REPLACEMENT, THE SUBSTITUTE PROVIDED WILL, AS NEARLY AS PRACTICABLE, SERVE IN THE SAME MANNER AND REASONABLY AS WELL AS THE EXISTING ROAD. THE HEAD OF THE AGENCY CONCERNED IS AUTHORIZED TO CONSTRUCT SUCH SUBSTITUTE ROADS TO DESIGN STANDARDS COMPARABLE TO THOSE OF THE STATE, OR, WHERE APPLICABLE STATE STANDARDS DO NOT EXIST, THOSE OF THE OWING POLITICAL DIVISION IN WHICH THE ROAD IS LOCATED, FOR ROADS OF THE SAME CLASSIFICATION AS THE ROAD BEING REPLACED. THE TRAFFIC EXISTING AT THE TIME OF THE TAKING SHALL BE USED IN THE DETERMINATION OF THE CLASSIFICATION. IN ANY CASE WHERE A STATE OR POLITICAL SUBDIVISION THEREOF REQUESTS THAT SUCH A SUBSTITUTE ROAD BE CONSTRUCTED TO A HIGHER STANDARD THAN THAT PROVIDED IN THE PRECEDING PROVISIONS OF THIS SUBSECTION, AND PAYS, PRIOR TO COMMENCEMENT OF SUCH CONSTRUCTION, THE ADDITIONAL COSTS INVOLVED DUE TO SUCH HIGHER STANDARD, SUCH AGENCY HEAD IS AUTHORIZED TO CONSTRUCT SUCH ROAD TO SUCH HIGHER STANDARD. FEDERAL COSTS UNDER THE PROVISIONS OF THIS SUBSECTION SHALL BE PART OF THE NONREIMBURSABLE PROJECT COSTS. ACCORDING TO THE LETTER OF THE DISTRICT ENGINEER, JACKSONVILLE DISTRICT CORPS OF ENGINEERS, DATED JUNE 24, 1964, CITED ABOVE, THE DESIGN STANDARDS FOLLOWED BY THE STATE OF FLORIDA AND APPLICABLE IN THIS CASE ARE THOSE SET OUT IN THE AMERICAN ASSOCIATION OF STATE HIGHWAY OFFICIALS DESIGN MANUAL WHICH, HE STATES, PROVIDES FOR FOUR-LANE FACILITIES WHEN THE DAILY TRAFFIC COUNT IS BETWEEN 5,000 AND 20,000 VEHICLES PER DAY. ACCORDINGLY, SINCE THE DAILY TRAFFIC COUNT AT THE TIME OF TAKING WAS LESS THAN 5,000 VEHICLES IT APPEARED TO US THAT THE CONSTRUCTION OF THE SECOND TWO-LANE BRIDGE ON U.S. HIGHWAY 19 WOULD CONTRAVENE THE EXPRESS PROVISIONS OF SECTION 207(C). LETTER OF MARCH 19, 1970, WE REQUESTED YOUR VIEWS ON THE LEGALITY OF THE CORPS FINANCING OF THE SECOND BRIDGE.

IN HIS REPLY OF SEPTEMBER 4, 1970, THE SPECIAL ASSISTANT TO THE SECRETARY AGREES THAT IF THE TRAFFIC COUNT AT THE TIME OF THE TAKING IS USED TO CLASSIFY THE ROAD AND THE PUBLISHED STATE STANDARDS FOR THE DETERMINED CLASSIFICATION WERE APPLIED, THE CORPS WOULD BE AUTHORIZED TO CONSTRUCT BUT ONE TWO-LANE BRIDGE AT FEDERAL EXPENSE. HE POINTS OUT, HOWEVER, THAT SOME STATES' PUBLISHED STANDARDS INCORPORATED DESIGN FEATURES TO HANDLE ANTICIPATED FUTURE TRAFFIC, WHILE OTHER STATES' PUBLISHED STANDARDS (SUCH AS IN FLORIDA) DID NOT INCORPORATE FUTURE GROWTH, ALTHOUGH THE PRACTICES IN THESE STATES IN SEPARATELY ESTIMATING FUTURE GROWTH, RESULTED ALSO IN THEIR ROADS BEING DESIGNED FOR FUTURE TRAFFIC INCREASES. THUS, WHEN SECTION 207(C) WAS APPLIED WITH REFERENCE ONLY TO THE PUBLISHED STANDARDS, AS WAS PROPOSED BY THE DISTRICT ENGINEER IN THIS CASE, THE RESULT WAS THAT THE TYPE OF SUBSTITUTE ROAD DEPENDED NOT ON THE STATE'S PRACTICE, BUT ON THE WAY IT HAD CHOSEN TO EXPRESS ITS PRACTICE. THIS HAS RESULTED IN SOME STATES RECEIVING, WITHOUT COST, ROADS BETTER THAN THOSE REPLACED, WITH OTHER STATES HAVING TO CONTRIBUTE FUNDS FOR SIMILAR IMPROVEMENTS.

BECAUSE OF THIS INEQUITY IT IS STATED THAT THE CHIEF OF ENGINEERS EVALUATED THE SITUATION IN THE FLORIDA CASE, AND, IN EFFECT, RECOGNIZED THE STATE'S PRACTICE (NOT PUBLISHED IN THE DESIGN STANDARD) OF INCLUDING PROJECTION FOR FUTURE GROWTH. FURTHER, IT IS STATED TO BE THE POSITION OF THE CHIEF OF ENGINEERS THAT THE TERM "DESIGN STANDARDS," REASONABLY CONSTRUED, HAS REFERENCE TO THE PRACTICE OF THE STATE AS EVIDENCED NOT ONLY BY ITS PUBLISHED GEOMETRIC STANDARDS BUT ALSO THE MEANS IT EMPLOYS, GIVEN A PARTICULAR TRAFFIC COUNT, USE, AND LOCALITY OF A ROAD, IN DETERMINING WHAT TYPE OF ORIGINAL OR REPLACEMENT ROAD IT WOULD BUILD.

BECAUSE OF THIS POSITION AND THE REPORTED STATE PRACTICE OF USING TRAFFIC PROJECTION, SEPARATE AND APART FROM THE PUBLISHED STATE STANDARDS TO JUSTIFY FOUR-LANE HIGHWAY CONSTRUCTION, IT IS STATED THAT PRIOR TO THE ISSUANCE OF AUTHORIZATION OF DECEMBER 28, 1964, FURTHER INQUIRY WAS MADE REGARDING THE STATE PRACTICE. CONCERNING SUCH INQUIRY THE STATE HIGHWAY ENGINEER THEREAFTER REPORTED THAT 1964 EXISTING TRAFFIC OF 4,400 VEHICLES PER DAY AT INGLIS SHOULD BE PROJECTED TO 11,200 PER DAY FOR 1985 IN ACCORDANCE WITH THEIR PRESENT PRACTICE OF USING PROJECTION IN CONJUNCTION WITH THE AASHO DESIGN MANUAL (WHICH PROVIDED FOR A FOUR-LANE FACILITY FOR TRAFFIC COUNTS BETWEEN 5,000 AND 20,000 VEHICLES PER DAY) TO DETERMINE THE NUMBER OF LANES TO BE PROVIDED. HE AGAIN REITERATED THAT THE STATE HAD NO FORMAL REGULATION CONCERNING DESIGN BASED ON PROJECTED TRAFFIC BUT THAT GOOD ENGINEERING PRACTICE WAS FOLLOWED. IT IS REPORTED THAT THE STATE OBTAINED A 1985 TRAFFIC ESTIMATE BY RESORT TO GASOLINE CONSUMPTION INCREASE DURING THE PERIOD 1954-1964, CONSISTENT WITH STATE POLICY TO OBTAIN MORE ACCURATE PROJECTION BASED ON GASOLINE CONSUMPTION LOCALLY, AREA GROWTH, POPULATION GROWTH AND SO FORTH.

HOWEVER, IN ORDER TO BE ASSURED OF THE PRACTICE OF THE STATE IN USING PROJECTED TRAFFIC TO ARRIVE AT A PROPER FOUR LANE DESIGN STANDARD, INQUIRY WAS MADE AS TO WHETHER THE STATE HAD INSTALLED FOUR LANE HIGHWAYS IN REPLACING TWO-LANE FACILITIES WITH TRAFFIC COUNT OF 5,000 VEHICLES PER DAY OR LESS. THE STATE HAS INDICATED THAT THERE ARE OTHER CASES, FOR EXAMPLE U.S. 27 WAS FOUR-LANED FROM PALMDALE TO CLEWISTON BETWEEN 1963 AND 1965 WITH AN AVERAGE DAILY TRAFFIC COUNT OF UNDER 4,000 AND BETWEEN TALLAHASSEE AND THE GEORGIA LINE DURING THE SAME PERIOD WITH A COUNT OF 2,500 VEHICLES PER DAY. IN VIEW OF THE FOREGOING INDICIA OF A STATE PRACTICE OF INCLUDING PROJECTED TRAFFIC TO ENTER THE AASHO DESIGN STANDARD FOR A FOUR- LANE FACILITY AND SINCE TRAFFIC AT TIME OF TAKING WAS USED AS THE BASIS FOR PROJECTION TO ENTER THE AASHO MANUAL, IT WAS DETERMINED THAT A PROPER BASIS EXISTED FOR AUTHORIZING A FOUR-LANE REPLACEMENT FACILITY. FURTHERMORE, AS PREVIOUSLY INDICATED, THE STATE WAS CURRENTLY DEMONSTRATING ITS DESIGN STANDARD FOR THE HIGHWAY IN QUESTION BY CONSTRUCTING FOUR LANES ON SEGMENTS OF THE HIGHWAY BOTH NORTH AND SOUTH OF THE CANAL CROSSING AND BY ACQUIRING MUCH OF THE NECESSARY RIGHT-OF-WAY FOR THE ENTIRE LENGTH OF HIGHWAY FROM THE GEORGIA LINE TO ST. PETERSBURG.

ACCORDINGLY, IT IS STATED TO BE THE VIEW OF THE SPECIAL ASSISTANT TO THE SECRETARY THAT THE FACTS AND CIRCUMSTANCES OF THIS CASE ARE CONSIDERED SUFFICIENT UNDER CRITERIA IN 40 COMP. GEN. 520 (1961) AND THE CORPS' INTERPRETATION OF THE STATES' STANDARDS TO WARRANT ALLOWANCE OF THE SECOND BRIDGE AS PART OF THE FOUR-LANE REPLACEMENT FACILITY. IN OTHER WORDS, IT IS HIS VIEW THAT THE STATE PRACTICE IN DESIGN STANDARD APPLICATION VALIDATED THE STATE'S INSISTENCE UPON A FOUR-LANE SUBSTITUTE FACILITY AND, THEREFORE, PROVISION OF THE SECOND TWO LANE BRIDGE DOES NOT CONTRAVENE SECTION 207(C).

THE DECISION REFERRED TO ABOVE, 40 COMP. GEN. 520, CONCERNED THE QUESTION WHETHER HIGHWAY U.S. 30 IN OREGON, A TWO-LANE HIGHWAY WITH A DAILY TRAFFIC COUNT OF 3,000 VEHICLES, SHOULD BE REPLACED AT FEDERAL EXPENSE WITH A FOUR -LANE HIGHWAY AS REQUIRED BY INTERSTATE STANDARDS FOR ROADS INCORPORATED INTO THE INTERSTATE SYSTEM. IN THE COURSE OF THAT DECISION WE STATED -

*** IT IS READILY APPARENT, SINCE THE STATE OF OREGON HAS ADOPTED THE INTERSTATE STANDARDS FOR U.S. 30 HIGHWAY, THAT A TECHNICAL ARGUMENT CAN BE MADE FOR REPLACEMENT OF U.S. 30 TO INTERSTATE STANDARDS BY THE CORPS, UNDER THE PLAIN WORDING OF THE PORTION OF SECTION 207(B) REFERRED TO. BUT THIS TECHNICAL ARGUMENT MUST FAIL FOR TWO REASONS. FIRST, THE STATUTE SETS FORTH AS A BASIS FOR DETERMINING THE CLASSIFICATION OF A STATE'S HIGHWAYS THAT THE TRAFFIC EXISTING AT THE TIME OF THE TAKING SHALL BE USED. WHILE U.S. 30 HAS BEEN CLASSIFIED AS AN INTERSTATE HIGHWAY, THE DESIGN STANDARDS ADOPTED FOR SUCH CLASSIFICATION RELATE TO 1975 RATHER THAN CURRENT TRAFFIC; AND SUCH CLASSIFICATION IS, THEREFORE, MEANINGLESS SO FAR AS THE APPLICATION OF SECTION 207(B) IS CONCERNED. ***

SUBSEQUENTLY THE OREGON DESIGN STANDARDS FOR HIGHWAYS CARRYING TRAFFIC OF 3,000-5,000 VEHICLES WERE DISCUSSED AND IT WAS NOTED THAT OREGON STATE HIGHWAY DEPARTMENT OFFICIALS ADVISED THAT SUCH STANDARDS WERE MERELY GUIDELINES AND THAT IN EACH PARTICULAR HIGHWAY RELOCATION OR IMPROVEMENT A PROSPECTUS IS PREPARED WHICH GIVES THE DESIGN STANDARDS TO BE USED AS A ROADBED SECTION, THE NUMBER OF TRAFFIC LANES, THE TYPE OF INTERCHANGES AND OTHER CRITERIA. TO DEMONSTRATE SUCH NEW STANDARDS ATTENTION WAS INVITED TO THE FACT THAT OREGON WAS THEN CONSTRUCTING THE NORTH SANTIAM HIGHWAY OUT OF SALEM TO THE STANDARD OF THE MODIFIED INTERSTATE CLASSIFICATION THEN PROPOSED FOR U.S. 30.

WHILE THE EVIDENCE OF RECORD WAS SUCH THAT WE COULD NOT RENDER AN OPINION WITH RESPECT TO THE DESIGN CRITERIA TO BE FOLLOWED IN CALCULATING THE COSTS FOR WHICH THE CORPS OF ENGINEERS WOULD BE LIABLE WE STATED THAT -

*** IF THE STATE OF OREGON WISHES TO IMPOSE DESIGN CRITERIA OF STANDARDS HIGHER THAN THOSE CONTAINED IN THE PUBLISHED DOCUMENTS REFERRED TO, THE STATE SHOULD BE REQUIRED TO SHOW, AT THE VERY LEAST, THAT THE HIGHER DESIGN CRITERIA HAVE BEEN AND ARE BEING MAINTAINED ON COMPARABLE ROADS.

AS PREVIOUSLY INDICATED, THIS STATEMENT FOLLOWED A DISCUSSION OF THE STATE DESIGN STANDARDS FOR HIGHWAYS CARRYING 3,000-5,000 VEHICLES AND WAS MADE AFTER WE HAD STATED IN SUCH DECISION, AS QUOTED ABOVE, THAT WHERE A HIGHWAY IS CLASSIFIED BY THE USE OF DESIGN STANDARDS WHICH RELATE TO PROJECTED FUTURE TRAFFIC RATHER THAN CURRENT TRAFFIC, SUCH CLASSIFICATION IS MEANINGLESS INSOFAR AS THE APPLICATION OF SECTION 207(B) IS CONCERNED. CONSEQUENTLY SUCH QUOTED STATEMENT DID NOT REFER TO DESIGN CRITERIA BASED ON PROJECTED FUTURE TRAFFIC BUT REFERRED RATHER TO THE STANDARDS TO WHICH THE STATE WOULD THEN CONSTRUCT A ROAD TO ACCOMMODATE A DAILY TRAFFIC COUNT OF 3,000 VEHICLES, I.E., A ROAD WHICH COULD HANDLE BETWEEN 3,000 AND 5,000 VEHICLES DAILY.

A SIMILAR MATTER INVOLVING STANDARDS FOR ANTICIPATED TRAFFIC WAS CONSIDERED IN 41 COMP. GEN. 255 (1961) WHEREIN IT WAS STATED, IN EFFECT, THAT IN THE RELOCATION OF A ROAD THE USE OF SUPERIOR DESIGN STANDARDS BASED ON ANTICIPATED FUTURE TRAFFIC CONSTITUTED BETTERMENTS THE EXCESS COST OF WHICH MUST BE BORNE BY THE STATE INASMUCH AS THE LEGAL OBLIGATION OF THE CORPS OF ENGINEERS IS TO PROVIDE RELOCATED HIGHWAYS DESIGNED ONLY TO EXISTING STATE STANDARDS FOR TRAFFIC VOLUME AT THE TIME OF TAKING. OUR VIEW THERE IS A DISTINCTION BETWEEN PROJECTING FUTURE TRAFFIC ON A CASE-BY-CASE (I.E., A ROAD-BY-ROAD) BASIS TO DETERMINE THE CLASSIFICATION OF A ROAD AND INCORPORATING INTO DESIGN STANDARDS FEATURES THAT WILL ENABLE A ROAD TO HANDLE A RANGE OF TRAFFIC (SUCH AS BETWEEN 5,000 AND 10,000 VEHICLES DAILY). THAT IS TO SAY, THERE IS A DIFFERENCE BETWEEN DESIGN STANDARDS WHICH PROVIDE THAT ALL NEW ROADS IN A STATE WITH AN ESTIMATED DAILY TRAFFIC COUNT BETWEEN CERTAIN RANGES (E.G., BETWEEN 5,000 AND 10,000 CARS PER DAY) SHALL BE BUILT TO CERTAIN STANDARDS AND THOSE DESIGN STANDARDS WHICH PROVIDE FOR USING THE CURRENT DAILY TRAFFIC COUNT AS A BASE AND THEN PROJECTING FUTURE TRAFFIC OVER A 20-YEAR PERIOD ON A ROAD-BY-ROAD BASIS TO DETERMINE THE CLASSIFICATION OF EACH ROAD TO BE CONSTRUCTED AND THE STANDARDS TO WHICH IT WILL BE BUILT.

WHERE TRAFFIC IS PROJECTED ON A CASE-BY-CASE (ROAD-BY-ROAD) BASIS, THE TRAFFIC AT THE TIME OF THE TAKING WOULD NOT BE DETERMINATIVE OF THE CLASSIFICATION OF THE ROAD; RATHER THE PROJECTED FUTURE TRAFFIC WOULD BE THE CONTROLLING FACTOR AS TO THE CLASSIFICATION AND THE DESIGN STANDARDS TO WHICH THE ROAD WOULD BE CONSTRUCTED. IN OUR OPINION SECTION 207(C) DOES NOT CONTEMPLATE THE USE OF PROJECTED FUTURE TRAFFIC TO DETERMINE THE CLASSIFICATION AND THE DESIGN STANDARDS TO WHICH A RELOCATED ROAD IS TO BE CONSTRUCTED. IN THE OTHER SITUATION MENTIONED ABOVE TRAFFIC AT THE TIME OF THE TAKING WOULD BE THE CONTROLLING FACTOR AND ALL HIGHWAYS (RELOCATED OR PROPOSED NEW HIGHWAYS) WITH THE SAME CURRENT TRAFFIC COUNT (ESTIMATED OR ACTUAL) WOULD BE GIVEN THE SAME CLASSIFICATION AND, HENCE, CONSTRUCTED TO THE SAME DESIGN STANDARDS. AN EXAMPLE OF THIS WOULD BE WHERE ROADS WITH A DAILY TRAFFIC COUNT OF BETWEEN 5,000 AND 10,000 VEHICLES ARE REQUIRED BY THE STATE STANDARDS OR PRACTICE TO BE BUILT TO CERTAIN STANDARDS. IN SUCH A CASE IF THE CURRENT DAILY TRAFFIC COUNT IS ONLY 6,000 VEHICLES AND THE ROAD IS BUILT TO STANDARDS WHICH WILL ENABLE IT TO HANDLE UP TO 10,000 VEHICLES, IT MAY BE SAID THAT THE STANDARDS INCORPORATE FEATURES TO HANDLE ANTICIPATED FUTURE TRAFFIC. HOWEVER, THESE STANDARDS WOULD BE APPLICABLE ACROSS THE BOARD TO ALL ROADS IN THE STATE AND THERE WOULD BE NO PROJECTION OF TRAFFIC ON A CASE-BY-CASE BASIS TO DETERMINE THE CLASSIFICATION OF ANY ONE ROAD. UNDER STANDARDS PROVIDING FOR A PROJECTION OF TRAFFIC TO DETERMINE ROAD CLASSIFICATIONS, TWO ROADS WITH THE SAME TRAFFIC COUNT AT THE TIME OF THE TAKING MIGHT BE GIVEN DIFFERENT CLASSIFICATIONS BASED ON THE PROJECTED TRAFFIC COUNT. INDICATED ABOVE THIS WOULD NOT BE CONSISTENT WITH SECTION 207(C) AND, IN OUR OPINION, WOULD BE IN VIOLATION OF SUCH SECTION INSOFAR AS THE USE OF FEDERAL FUNDS IS CONCERNED TO PAY THE EXCESS CONSTRUCTION COSTS INCURRED TO BUILD THE HIGHWAY TO MEET THE NEEDS OF THE PROJECTED FUTURE TRAFFIC.

FURTHER, TO HOLD THAT IN THE RELOCATION OF A ROAD THE NEW ROAD MAY BE CONSTRUCTED AT FEDERAL EXPENSE TO STANDARDS DESIGNED TO ACCOMMODATE FUTURE TRAFFIC WOULD FOR ALL PRACTICAL PURPOSES ELIMINATE ALMOST ANY SITUATION IN WHICH A STATE COULD BE REQUIRED TO CONTRIBUTE TO THE COST OF BETTERMENTS - AS REQUIRED BY SECTION 207(C) - PARTICULARLY IF THE TRAFFIC VOLUME WERE TO BE PROJECTED OVER THE NUMBER OF YEARS THAT THE HIGHWAY COULD BE EXPECTED TO BE SERVICEABLE.

IN LIGHT OF THE FOREGOING IT IS OUR VIEW THAT WHETHER A STATE, IN EITHER ITS PUBLISHED STANDARDS OR IN ITS ACTUAL PRACTICE, PROJECTS FUTURE TRAFFIC TO DETERMINE THE CLASSIFICATION OF A ROAD, THE CORPS MAY NOT PAY ANY CONSTRUCTION COSTS (IN RELOCATING A HIGHWAY) RELATED TO PROVIDING FOR THE PROJECTED FUTURE TRAFFIC, SINCE THE ROAD CLASSIFICATION IN SUCH CASE WOULD NOT BE BASED ON THE TRAFFIC COUNT AT THE TIME OF THE TAKING (AS REQUIRED BY SECTION 207(C)) BUT RATHER ON SOME PROJECTED FUTURE TRAFFIC COUNT.

AS INDICATED ABOVE, HOWEVER, FEDERAL FUNDS MAY BE USED TO CONSTRUCT RELOCATED HIGHWAYS TO A STATE STANDARD OR PRACTICE WHICH PROVIDES FOR USING THE CURRENT DAILY TRAFFIC COUNT TO DETERMINE THE ROAD CLASSIFICATION, EVEN THOUGH THE STANDARDS OR PRACTICE PROVIDE FOR CONSTRUCTION OF ROADS WHICH WILL HANDLE A RANGE OF TRAFFIC SO THAT SUCH STANDARDS OR PRACTICE MAY BE CONSIDERED TO INCORPORATE FEATURES TO HANDLE ANTICIPATED FUTURE TRAFFIC. ACCORDINGLY, SINCE IT APPEARS FROM THE PRESENT RECORD THAT CONSTRUCTION OF THE SECOND BRIDGE WAS BASED ON A PROJECTED TRAFFIC COUNT AND NOT ON THE TRAFFIC COUNT AT THE TIME OF THE TAKING, SUCH ..END :