B-169228, APR. 14, 1970

B-169228, APR. 14, 1970

PUBLIC LANDS--INTERAGENCY LOANS, TRANSFERS, ETC.--DAMAGES, RESTORATION, ETC.--AUTHORITY WHERE ELMER CITY PARK OWNED BY U.S. AS PART OF CORPS OF ENGINEERS' CHIEF JOSEPH DAM PROJECT WAS DAMAGED BY BUR. OF RECLAMATION DURING CONSTRUCTION OF GRAND COULEE THERD POWER PLANT AND NO SPECIFIC AUTHORITY FOR REIMBURSEMENT WAS PROVIDED FOR IN BASIC ACT AUTHORIZING CONSTRUCTION NOR ELSEWHERE, BUR. OF RECLAMATION MAY NOT REIMBURSE CORPS OF ENGINEERS FOR DAMAGE ON RELOCATE PARK IN LIEU OF PAYMENT OF DAMAGES SINCE IT IS WELL ESTABLISHED PRINCIPLE THAT IN ABSENCE OF SPECIFIC AUTHORITY AN EXECUTIVE DEPARTMENT MAY NOT BE REIMBURSED FOR USE OF REAL PROPERTY LOANED, USED OR DAMAGED BY ANOTHER DEPARTMENT. SEE COMP. GEN. DECS. CITED.

TO MR. SECRETARY:

THIS IS IN REFERENCE TO LETTER OF FEBRUARY 27, 1970, FROM THE ASSISTANT SECRETARY OF THE INTERIOR, REQUESTING A DECISION WHETHER THE BUREAU OF RECLAMATION MAY REIMBURSE THE CORPS OF ENGINEERS FOR DESTRUCTION OF THE ELMER CITY PARK. THE DAMAGES OCCURRED INCIDENT TO CONSTRUCTION OF THE GRAND COULEE THIRD POWERPLANT, COLUMBIA BASIN PROJECT, WASHINGTON.

IT IS STATED THAT THE ELMER CITY PARK SITE IS OWNED IN FEE BY THE UNITED STATES AS A PART OF THE CORPS OF ENGINEERS' CHIEF JOSEPH DAM PROJECT. THE PARK WAS OPENED IN 1964 AND INCLUDED CAMPING FACILITIES AND A BOAT LAUNCHING RAMP. CONSTRUCTION OF THE POWERPLANT REQUIRED THAT THE BUREAU OF RECLAMATION ASSUME JURISDICTION OVER THE CHANNEL OF THE COLUMBIA RIVER FOR A DISTANCE OF SOME SIX MILES DOWNSTREAM FROM GRAND COULEE DAM. THE PARK WAS PARTIALLY BURIED IN PLACING EMBANKMENT FILL AND RIPRAP ALONG THE RIVER. REIMBURSEMENT SOUGHT BY THE CORPS OF ENGINEERS IS IN THE TENTATIVE AMOUNT OF $230,000.

THE FACTS RELATIVE TO THE MATTER ARE SET FORTH IN THE ASSISTANT SECRETARY'S LETTER AS FOLLOWS:

"THE BUREAU'S MAIN CONTRACT FOR THE EXCAVATION OF THE POWERPLANT SITE PROVIDED THAT THE EXCAVATED MATERIALS BE PLACED AS RIPRAP AND EMBANKMENT FILL ON THE DOWNSTREAM RIVERBANKS. THIS PROCEDURE WAS FACILITATED BY DEPARTMENT OF ARMY PERMIT DATED MAY 17, 1968, A COPY OF WHICH IS ENCLOSED. MATERIAL PLACED HAS BURIED A PORTION OF THE CORPS' ELMER CITY PARK AND BOAT LAUNCH FACILITIES AND CUT OFF PARK ACCESS TO THE RIVER. THE BUREAU OF RECLAMATION HAS BUILT A TEMPORARY BOAT RAMP ABOUT THREE MILES BELOW ELMER CITY IMMEDIATELY DOWNSTREAM FROM THE EMBANKMENT AREA. HOWEVER, LARGE PEAKING FLOWS AND RESULTING HEAVY SURGES IN THIS REACH OF THE RIVER PROBABLY WILL PRODUCE HAZARDOUS CONDITIONS FOR BOATING AND RELATED RECREATIONAL ACTIVITIES.

"THE RIPRAP AND EMBANKMENT FILL PLACEMENT ALONG THE RIVERBANK HAS A TWOFOLD PURPOSE. FIRST, THE BULK OF THE EXCAVATED MATERIAL FOR THE POWERPLANT WILL TOTAL ABOUT 11 MILLION TONS. TRANSPORTING SUCH A BULK OF MATERIAL OUT OF THE CANYON WOULD REQUIRE ENORMOUS EXPENDITURES OF TIME AND MONEY. THUS, THE DISPOSAL OF THE EXCAVATED MATERIAL DOWNGRADE AND DOWNSTREAM FROM THE SITE IS THE MOST FEASIBLE METHOD, AND WOULD APPEAR TO BE A NECESSARY AND INHERENT PART OF THE AUTHORIZATION AND CONSTRUCTION OF THE PROJECT ITSELF. THE SECOND PURPOSE OF THE DISPOSAL IS RIVERBANK PROTECTION. ULTIMATE DEVELOPMENT OF THE POWERPLANT WILL RESULT IN HIGH VELOCITY SURGES AND LARGE FLUCTUATIONS IN THE RIVER LEVEL WHICH WILL GREATLY INCREASE HAZARDS OF LANDSLIDES AND BANK SLIPPAGE. THE UNSTABLE NATURE OF THE RIVERBANKS IN THIS AREA AND THE NECESSITY OF PLACING 4 1/2 MILES OF PROTECTIVE RIPRAP AS A PROJECT FEATURE WERE RECOGNIZED IN THIS DEPARTMENT'S FEASIBILITY REPORT SUBMITTED TO THE CONGRESS PRIOR TO AUTHORIZATION OF THE THIRD POWERPLANT (PAGE 39, HOUSE DOCUMENT NO. 142, 89TH CONGRESS, 1ST SESSION).

"THE QUESTION APPEARS TO BE WHETHER CONGRESS HAS AUTHORIZED OR CONTEMPLATED THAT ITS APPROPRIATIONS FOR CONSTRUCTION OF THE THIRD POWERPLANT WOULD BE MADE AVAILABLE TO RELOCATE THE PARK OR REIMBURSE THE CORPS OF ENGINEERS FOR THE RESULTING DAMAGE. IF THE AUTHORITY EXISTS, THE CORPS WOULD BE REIMBURSED FOR LOSS OF THE ELMER CITY PARK, OR THE FACILITIES WOULD BE RELOCATED APPROXIMATELY 20 MILES DOWNSTREAM FROM ELMER CITY AT A SITE NEAR THE MOUTH OF NESPELEM CREEK WHERE RIVER SURGES WILL BE LESS VIOLENT THAN IN THE ELMER CITY AREA."

REFERENCE IS MADE IN THE ASSISTANT SECRETARY'S LETTER TO DECISION OF OUR OFFICE, 44 COMP. GEN. 693 (1965), SETTING FORTH THE PRINCIPLE THAT ONE EXECUTIVE DEPARTMENT MAY NOT BE REIMBURSED FOR THE DAMAGE OR LOSS OF REAL PROPERTY BY ANOTHER DEPARTMENT. IT IS POINTED OUT IN THE LETTER THAT THE AUTHORIZING LEGISLATION FOR THE THIRD POWERPLANT, PUB. L. 89-448, APPROVED JUNE 14, 1966, 80 STAT. 200, AUTHORIZES APPROPRIATIONS FOR CONSTRUCTION OF "THE POWERPLANT AND NECESSARY APPURTENANT WORKS," BUT DOES NOT SPECIFY FURTHER. IN ADDITION IT IS POINTED OUT THAT WHILE REFERENCES IN THE FEASIBILITY REPORT FOR THE POWERPLANT, H. DOC. 142, 89TH CONGRESS, INDICATED THE NEED FOR RIPRAP ON THE RIVER BANKS, AND THE NEED TO ACQUIRE DOWNSTREAM LANDS AND RELOCATION OF VARIOUS DEVELOPMENTS, NO REFERENCE WAS MADE TO RELOCATION OF THE CORPS' PARK. THE VIEW IS EXPRESSED IN THE LETTER THAT IT "WOULD SEEM THAT DAMAGE TO THE PARK WAS CONTEMPLATED, BUT WITHOUT INDICATION THAT THE CORPS WOULD BE REIMBURSED FOR RESULTING DAMAGES."

IT IS A WELL-ESTABLISHED PRINCIPLE THAT IN THE ABSENCE OF SPECIFIC AUTHORITY THEREFOR, AN EXECUTIVE DEPARTMENT MAY NOT BE REIMBURSED FOR THE USE OF REAL PROPERTY LOANED, USED, OR DAMAGED BY ANOTHER DEPARTMENT. SEE 31 COMP. GEN. 329 (1952); 32 ID. 179 (1952); AND 44 ID. 693 (1965). THE BASIC LAW PROVIDING FOR THE PROJECT HERE INVOLVED, PUBLIC LAW 89-448, DOES NOT CONTAIN SUCH AUTHORITY, AND NO APPROPRIATION OF THE DEPARTMENT OF THE INTERIOR HAS BEEN CITED, AND NONE HAS BEEN FOUND, THAT MIGHT BE CONSIDERED AS AVAILABLE FOR REIMBURSEMENT FOR DAMAGES TO, OR RELOCATION OF, THE INSTANT PARK FACILITIES. IN VIEW THEREOF THE GENERAL RULE IS FOR APPLICATION AND ACCORDINGLY THE BUREAU OF RECLAMATION MAY NOT REIMBURSE THE CORPS FOR THE DAMAGES HERE INVOLVED OR RELOCATE THE PARK IN LIEU OF PAYING DAMAGES.