B-185074, NOV 28, 1975

B-185074: Nov 28, 1975

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A NEW BRIDGE WAS TO HAVE BEEN CONSTRUCTED TO REPLACE THE COCHRANE BRIDGE. WHICH WAS CONTINGENT UPON FINAL INTERSTATE COMMERCE COMMISSION (ICC) APPROVAL OF THE BRIDGE ABANDONMENT. THE INSTANT WATERWAY PROJECT WAS PROVIDED FOR BY THE ACT OF JULY 24. OTHER WATERWAYS ARE HEREBY ADOPTED AND AUTHORIZED TO BE PROSECUTED UNDER THE DIRECTION OF THE SECRETARY OF WAR AND SUPERVISION OF THE CHIEF OF ENGINEERS. INDICATED THAT THE COCHRANE BRIDGE WOULD HAVE TO BE REMOVED AND ANOTHER. WAS IN GOOD CONDITION BECAUSE OF CONTINUOUS MAINTENANCE BUT DID NOT PROVIDE THE HORIZONTAL OR VERTICAL CLEARANCE NEEDED FOR THE WATERWAY. PAGE 2: "*** SINCE THIS MAIN LINE OF THE FRISCO RAILWAY IS AN IMPORTANT LINK IN THE OVER-ALL SYSTEM CONNECTING WITH THE PORT OF MOBILE AND IN SERVICE TO NUMEROUS TIMBER AND WOOD USING 'PLANTS' IN THE LOCAL AREA THAT DEPEND ON CONSTANT DELIVERY.

B-185074, NOV 28, 1975

PRECIS-UNAVAILABLE

TOM BEVILL, HOUSE OF REPRESENTATIVES:

WE REFER FURTHER TO YOUR LETTER OF OCTOBER 6, 1975, REGARDING AN AGREEMENT BETWEEN THE U. S. ARMY CORPS OF ENGINEERS (CORPS) AND THE ST. LOUIS AND SAN FRANCISCO RAILWAY (FRISCO) UNDER WHICH FRISCO WOULD BE PAID $3,550,000 FOR THE RIGHT-OF-WAY OF A PARTIALLY COLLAPSED RAILROAD BRIDGE (COCHRANE BRIDGE) SPANNING THE TOMBIGBEE RIVER BETWEEN ALICEVILLE AND COCHRANE, ALABAMA, FOR CERTAIN CONSTRUCTION AND RENTAL COSTS OF REROUTING RAIL TRAFFIC OVER ANOTHER LINE, THUS ABANDONING THE ORIGINAL ROUTE AND ORIGINAL BRIDGE. AS PART OF THE TOMBIGBEE-TENNESSEE WATERWAY PROJECT, A NEW BRIDGE WAS TO HAVE BEEN CONSTRUCTED TO REPLACE THE COCHRANE BRIDGE, PRIOR TO ITS PARTIAL COLLAPSE, AT A COST WELL IN EXCESS OF $6 MILLION.

YOU ASKED THAT WE EXAMINE THE LEGALITY OF THE CONTRACT BETWEEN THE CORPS AND FRISCO, WHICH WAS CONTINGENT UPON FINAL INTERSTATE COMMERCE COMMISSION (ICC) APPROVAL OF THE BRIDGE ABANDONMENT, TO REIMBURSE FRISCO FOR THIS ABANDONMENT AND "REFUSAL TO REBUILD THE BRIDGE."

THE INSTANT WATERWAY PROJECT WAS PROVIDED FOR BY THE ACT OF JULY 24, 1946, CH. 595 SEC. 1, 60 STAT. 634, 635, AS FOLLOWS:

"*** THE FOLLOWING WORKS OF IMPROVEMENT OF RIVERS, HARBORS, AND OTHER WATERWAYS ARE HEREBY ADOPTED AND AUTHORIZED TO BE PROSECUTED UNDER THE DIRECTION OF THE SECRETARY OF WAR AND SUPERVISION OF THE CHIEF OF ENGINEERS, IN ACCORDANCE WITH THE PLANS AND SUBJECT TO THE CONDITIONS RECOMMENDED BY THE CHIEF OF ENGINEERS IN THE RESPECTIVE REPORTS HEREINAFTER DESIGNATED:

"TOMBIGBEE AND TENNESSEE RIVERS, ALABAMA AND MISSISSIPPI; HOUSE DOCUMENT NUMBERED 486, SEVENTY-NINTH CONGRESS ***."

THE CITED HOUSE DOCUMENT, ENTITLED "WATERWAY CONNECTING THE TOMBIGBEE AND TENNESSEE RIVERS," H. R. DOC. NO. 486, 79TH CONG., 2D SESS. (1946), PROVIDED FOR MINIMUM CLEARANCE FOR BRIDGES OVER THE WATERWAY. THE PROPOSED PLAN OF IMPROVEMENT INVOLVED THE CONSTRUCTION OR ALTERATION OF 13 HIGHWAY AND 7 RAILROAD BRIDGES TO PROVIDE THESE CLEARANCES. ID., AT 44. TABLE 36, ID., AT 45, INDICATED THAT THE COCHRANE BRIDGE WOULD HAVE TO BE REMOVED AND ANOTHER, HIGHER BRIDGE CONSTRUCTED IN ITS PLACE. THE DOCUMENT ALSO STATED, AT PAGE 49, AS FOLLOWS:

"*** THE FEDERAL GOVERNMENT SHOULD BEAR THE COST OF CONSTRUCTION OF ALL WORKS OF NAVIGATION; ALL RAILROAD BRIDGES OVER EXISTING NAVIGABLE STREAMS IN ACCORDANCE WITH THE PROVISIONS OF EXISTING LAWS; ALL RAILROAD-TRACK CHANGES EXCLUSIVE OF THOSE CAUSED BY BRIDGE ALTERATIONS; ALL NEW RAILROAD BRIDGES TO BE CONSTRUCTED WHERE NO BRIDGE EXISTS AT PRESENT, INCLUDING NECESSARY TRACK CHANGES AND THE ESTIMATED MAINTENANCE AND OPERATION COST; THE COST OF ALL RIGHTS-OF-WAY AND FLOWAGE DAMAGES; AND THE COST OF ALTERATION OR RELOCATION OF ALL UTILITIES EXCEPT NECESSARY ALTERATIONS TO SEWERS, DRAINAGE, AND WATER SUPPLY WORKS. ***"

CORPS DESIGN MEMORANDUM NO. 9, GAINESVILLE LOCK AND DAM, TENNESSEE TOMBIGBEE WATERWAY, DATED JUNE 12, 1970, INDICATED THAT THE COCHRANE BRIDGE, BUILT IN 1907 ON A MAIN LINE OF THE NORTH-SOUTH FRISCO ROUTE TERMINATING AT MOBILE, ALABAMA, WAS IN GOOD CONDITION BECAUSE OF CONTINUOUS MAINTENANCE BUT DID NOT PROVIDE THE HORIZONTAL OR VERTICAL CLEARANCE NEEDED FOR THE WATERWAY, AND STATED AS FOLLOWS, PAGE 2:

"*** SINCE THIS MAIN LINE OF THE FRISCO RAILWAY IS AN IMPORTANT LINK IN THE OVER-ALL SYSTEM CONNECTING WITH THE PORT OF MOBILE AND IN SERVICE TO NUMEROUS TIMBER AND WOOD USING 'PLANTS' IN THE LOCAL AREA THAT DEPEND ON CONSTANT DELIVERY, IT IS ESSENTIAL THAT THIS TOMBIGBEE RIVER CROSSING CONTINUE AFTER THE GIANESVILLE LOCK AND DAM IS CONSTRUCTED. ***"

THE MEMORANDUM CONSIDERED THE TECHNICAL REQUIREMENTS REGARDING A REPLACEMENT BRIDGE. FINAL APPROVAL FOR THE CONSTRUCTION OF A REPLACEMENT BRIDGE WAS GIVEN BY THE OFFICE OF THE CHIEF OF ENGINEERS BY INDORSEMENT TO THE MEMORANDUM, ON JUNE 26, 1973.

ON JUNE 24, 1973, THE 222 FOOT SWING SPAN AND PIVOT PIER OF THE BRIDGE COLLAPSED, BUT THE REMAINING STRUCTURAL ELEMENTS WERE UNDAMAGED. BECAUSE OF THE COLLAPSE, THE INTERSTATE COMMERCE COMMISSION (ICC), BY SERVICE ORDER NO. 1154, EFFECTIVE OCTOBER 6, 1973, AUTHORIZED FRISCO TO OPERATE OVER THE TRACKS OF THE ALABAMA GREAT SOUTHERN RAILROAD (SOUTHERN) BETWEEN BOLIGEE AND YORK, ALABAMA, A DISTANCE OF APPROXIMATELY 25 MILES. THE ORDER, WHICH WAS TO EXPIRE ON APRIL 1, 1974, WAS AMENDED 3 TIMES TO EXTEND SUCH AUTHORITY UNTIL DECEMBER 1, 1975.

ON OCTOBER 5, 1973, AT A CONFERENCE WITH THE CORPS, FRISCO PROPOSED TO ABANDON THE COCHRANE RIVER CROSSING AND TO USE THE SOUTHERN FACILITIES ON A PERMANENT BASIS, IF APPROVED BY THE ICC. ON DECEMBER 7, 1973, FRISCO WROTE TO THE DISTRICT ENGINEER, MOBILE, ALABAMA, DETAILING THE PROPOSAL UNDER WHICH THE CORPS WOULD NOT HAVE TO CONSTRUCT A NEW BRIDGE IF A SETTLEMENT OF $3,809,133 WERE MADE WITH THE RAILROAD, TO COVER THE INITIAL COST OF REMOVING THE OLD BRIDGE, IMPROVEMENTS TO THE FACILITIES OF SOUTHERN, AND PAYMENT FOR THE COST OF USE OF SOUTHERN'S TRACKS FOR 25 YEARS.

BY LETTER OF FEBRUARY 21, 1974, FRISCO SUBMITTED A REVISED COST ESTIMATE OF $3,607,798. IT WAS STATED THAT APPROVAL BY THE CORPS WOULD BE NECESSARY BEFORE THE RAILROAD WOULD PROCEED TO OBTAIN PERMANENT RIGHTS TO OPERATE OVER SOUTHERN'S TRACKS, AND IF NEGOTIATIONS WITH THE CORPS WERE NOT SUCCESSFUL OR IF NECESSARY PERMITS AND AUTHORIZATION WERE NOT OBTAINED, THEN A NEW BRIDGE WOULD HAVE TO BE BUILT.

THE AMOUNT PROPOSED BY FRISCO INCLUDED COSTS TO THE COMPANY FOR CONNECTIONS AT YORK AND BOLIGEE, $443,000, SIDING AT BOLIGEE, $88,000; REMOVAL COST FOR REBUILT BRIDGE, $50,000, LESS THE COST OF REMOVAL OF THE COLLAPSED BRIDGE, $30,000, AND LESS THE COST OF REBUILDING THE BRIDGE, $305,000, FOR NET INITIAL COST OF $246,000. IN ADDITION THERE WAS THE ANNUAL PAYMENT TO SOUTHERN FOR OPERATING BETWEEN YORK AND BOLIGEE, 5,668 CARS A MONTH AT $0.07 PER CAR MILE FOR 23.5 MILES PER MONTH FOR A TOTAL OF $112,000 PER YEAR FOR 25 YEARS, WITH A 4 PER CENT ANNUAL INFLATION RATE, 3.9 PER CENT ANNUAL VOLUME INCREASE, AND 6 PER CENT DISCOUNT RATE, FOR A TOTAL $3,361.798 (GRAND TOTAL - $3,607,798). AFTER REVIEW BY CORPS PERSONNEL, A MEETING WAS HELD ON JUNE 11, 1974, AT WHICH THE AMOUNT OF $3,550,000 WAS AGREED UPON.

ON FEBRUARY 3, 1975, THE OFFICE OF THE CHIEF OF ENGINEERS GRANTED AUTHORITY TO ACCEPT FRISCO'S "OFFER TO SELL LASEMENTS," WHICH WAS ACCEPTED ON BEHALF OF THE GOVERNMENT ON JULY 2, 1975.

THE AGREEMENT PROVIDES FOR FRISCO TO SELL ITS EASEMENTS PERTAINING TO THE COCHRANE BRIDGE TO THE UNITED STATES FOR $3,550,00, PROVIDED THE RAILROAD IS GRANTED AUTHORITY BY THE ICC FOR ABANDONMENT OF THE BRIDGE AND REROUTING OF RAIL SERVICE BETWEEN ALICEVILLE AND YORK. IN THE EVENT THAT SUCH AUTHORITY IS DENIED, THE AGREEMENT IS TO BE VOID. SOUGHT AUTHORITY TO ACQUIRE RIGHTS OVER TRACKAGE OF SOUTHERN BETWEEN YORK AND BOLIGEE, AND BY APPLICATION FILED ON SEPTEMBER 25, 1974, SOUGHT THE ABANDONMENT OF THE COCHRANE BRIDGE. THE ICC DECIDED ON AUGUST 6, 1975 (DOCKET NO. AB-9 (SUB- NO.3) AND FINANCE DOCKET NO. 27685), TO PERMIT THE ABANDONMENT AND GRANT THE TRACKAGE RIGHTS, SUBJECT TO CERTAIN CONDITIONS, INCLUDING THAT FRISCO PAY THE COST OF SWITCHING AND SIDING IMPROVEMENTS IN BOLIGEE AND YORK. THE ICC, IN GRANTING THE APPLICATIONS, STATED THAT THE OVERRIDING CONSIDERATION WAS THE PRUDENT EXPENDITURE OF PUBLIC FUNDS; THAT OVER $4 MILLION COULD BE SAVED IF A NEW BRIDGE WERE NOT BUILT; AND THAT RECONSTRUCTION WOULD RESULT IN UNNECESSARY EXPENDITURE OF FUNDS; CITING PURCELL V. UNITED STATES, 315 U. S. 381 (1942) AS AUTHORITY FOR BASING ITS DECISION ON SUCH A CONSIDERATION. PETITION FOR RECONSIDERATION WAS DENIED BY ICC ORDER DATED OCTOBER 24, 1975.

CORPS REGULATIONS, SECTION LXXIII (RELOCATIONS, ALTERATIONS, VACATIONS AND ABANDONMENTS) PROVIDE THAT FOR RAILROADS, DESIGN MEMORANDA SHALL PROVIDE INFORMATION AS TO POSSIBLE ABANDONMENT WITHOUT REPLACEMENT, AS WELL AS THE POSSIBILITY OF JOINT OPERATION WITH SOME OTHER RAILROAD (PARA. 73-301.3 (C)). PARAGRAPH 73-402 OF THE REGULATIONS PROVIDES IN PART AS FOLLOWS:

"(C) WHERE ABANDONMENT, RELOCATION OR ALTERATION OF A ROAD, RAILROAD, PIPE LINE OR PUBLIC UTILTIY IS REQUIRED TO CLAIMINATE INTERFERENCE WITH A PROJECT, IT IS PERMISSIBLE FOR THE DIVISION OR DISTRICT ENGINEER TO RECOMMEND, IN EXTENUATING CIRCUMSTANCES, THE PURCHASE OF THE FACILITY RATHER THAN ENTERING INTO THE STANDARD RELOCATION AGREEMENT.

"(1) IN THE CASE OF ABANDONMENT, THE PURCHASE PRICE WILL BE BASED ON THE SALVAGE VALUE OF THE FACILITY, PLUS FAIR MARKET VALUE OF ANY LAND OR INTERESTS THEREIN ACQUIRED FOR PROJECT PURPOSES.

"(2) IN THE EVENT THERE IS AN ESTABLISHED NECESSITY FOR CONTINUED USE OF THE FACILITY, THE PURCHASE PRICE WILL BE BASED ON THE APPRAISED FAIR MARKET VALUE OF THE FACILITY TO BE ACQUIRED OR THE ESTIMATED COST OF THE MOST ECONOMICAL AND REASONABLE PLAN OF REPLACEMENT, ADJUSTMENT, OR RELOCATION. IF THE LATTER BASIS IS USED, AND THE PURCHASE PRICE IS IN EXCESS OF THE FAIR MARKET VALUE OF THE FACILITY TO BE ACQUIRED, THERE MUST BE A DEFINITE SHOWING OF NEED FOR CONTINUATION OF THE SERVICES PROVIDED BY THE AFFECTED FACILITY. ***"

IN REPLY TO OUR REQUEST FOR AN ADMINISTRATIVE REPORT, SUBSEQUENT TO THE RECEIPT OF YOUR LETTER, MR. EDWARD GOWEN, ACTING DIRECTOR OF REAL ESTATE, OFFICE OF THE CHIEF OF ENGINEERS, ON NOVEMBER 7, 1975, RESPONDED WITH A MEMORANDUM WHICH STATED AS FOLLOWS:

"THE FRISCO IS TO RECEIVE THE AMOUNT OF $3,550,000. THE MAY 1974 COST FOR A REPLACEMENT BRIDGE TO PROJECT STANDARDS IS $6,832,400. AFTER ABATING THIS AMOUNT BY THE COST OF REPAIRING THE COLLAPSED BRIDGE, $305,000, ($6,832,400 - $305,000 $6,527,400) A SUBSTANTIAL SAVINGS OCCURS ($6,527,400 - $3,550,000 $2,977,400) IN THE AMOUNT OF $2,977,400. SHOULD BE NOTED THAT THE BRIDGE REPLACEMENT COST IS IN 1974 PRICES. CURRENT COST ESTIMATE IS OVER $7,000,000 TO CONSTRUCT A NEW BRIDGE THAT WILL MEET PROJECT REQUIREMENTS.

"THE PAYMENTS MADE TO FRISCO WILL 'PUT THEM IN AS GOOD A POSITION PECUNIARILY' AS FRISCO WOULD HAVE BEEN HAD ITS PROPERTY NOT BEEN TAKEN. FRISCO IS BEING PAID WHAT IT WILL COST THEM TO REROUTE THESE TRAINS OVER SOUTHERN LINES AND COSTS OF CONNECTING TRACKAGE AT BOLIGEE AND YORK TO FACILITATE THE REROUTING. THE COST OF REMOVAL OF THE BRIDGE WAS DELETED AS AN ELIGIBLE ITEM DURING NEGOTIATIONS WITH THE RAILROAD."

THE ADMINISTRATIVE REPORT CONCLUDED AS FOLLOWS:

"THE UNITED STATES IS REQUIRED TO COMPENSATE THE FRISCO FOR THE INTERESTS TO BE ACQUIRED FROM THEM UNDER THE APPROPRIATE CASE LAW AND THE FIFTH AMENDMENT TO THE CONSTITUTION. THE FACT THAT COCHRANE BRIDGE WAS PARTIALLY COLLAPSED DID NOT RENDER IT TOTALLY VALUELESS, BUT THE COST OF REPAIR HAS TO BE DEDUCTED FROM THE PAYMENT OF JUST COMPENSATION. THE RAILROAD IS ENTITLED TO NOT ONLY THE COST OF THE INTERESTS ACQUIRED, BUT TO THE SEVERANCE DAMAGES TO THEIR REMAINDER. THUS RELOCATION WAS SELECTED AS THE LEAST EXPENSIVE METHOD OF JUST COMPENSATION. THE PARTIAL ABANDONMENT AND REROUTING WILL EFFECT A CONSIDERABLE SAVINGS TO THE GOVERNMENT. THE PAYMENT TO FRISCO IS FAIR AND REASONABLE AND WILL PLACE THE RAILROAD IN THE SAME POSITION PECUNIARILY AS IT WAS PRIOR TO ACQUISITION BY THE GOVERNMENT. THE CONTRACT IS LEGAL AND BINDING UPON THE GOVERNMENT AS WELL AS THE FRISCO RAILROAD. THE AMOUNT OF MONEY TO BE PAID TO THE RAILROAD IS BASED UPON A REVIEW BY CORPS PERSONNEL AND IS APPROPRIATE."

THE COCHRANE BRIDGE DID NOT PROVIDE ENOUGH CLEARANCE FOR THE WATERWAY, SO THAT IT HAD TO BE REMOVED. THE CORPS' 1946 REPORT TO THE CONGRESS INDICATED THAT IT WOULD BE REPLACED WITH ANOTHER BRIDGE WHICH WOULD MEET THE WATERWAY STANDARDS, AND THE DESIGN MEMORANDUM OF 1970 CONCLUDED THAT A BRIDGE REPLACEMENT WAS NECESSARY SINCE IT WAS ON THE MAIN LINE OF THE FRISCO RAILWAY. HOWEVER, SUBSEQUENT TO THE BRIDGE COLLAPSE IN 1973, FRISCO PROPOSED THE ALTERNATIVE OF USE OF SOUTHERN TRACKAGE BETWEEN BOLIGEE AND YORK, WHICH, IF APPROVED BY THE ICC, WOULD RESULT IN LESS COST TO THE GOVERNMENT THAN REMOVAL OF THE COCHRANE BRIDGE AND CONSTRUCTION OF AN ENTIRELY NEW BRIDGE.

IN ANALYZING THE LEGALITY OF THE INSTANT AGREEMENT, IT MUST FIRST BE EMPHASIZED THAT MERE REPAIR OR REBUILDING OF THE EXISTING COCHRANE BRIDGE IS OBVIOUSLY NOT A VIABLE ALTERNATIVE SINCE THE VERY REASON FOR CORPS INVOLVEMENT WAS THE EXISTING STRUCTURE'S INTERFERENCE WITH THE WATERWAY PROJECT. THUS THE COST OF REBUILDING THE EXISTING BRIDGE - $335,000, AS STATED IN YOUR LETTER, OR $305,000, ACCORDING TO THE CORPS - CANNOT BE MEANINGFULLY COMPARED TO THE REROUTING COSTS UNDER THE INSTANT AGREEMENT. INSTEAD, THE RELEVANT COMPARISON IS BETWEEN THE REROUTING COSTS AND THE COST OF THE ALTERNATIVE OF CONSTRUCTING AN ENTIRELY NEW BRIDGE MEETING CORPS PROJECT REQUIREMENTS REDUCED BY A FACTOR FOR REPAIR OF THE EXISTING BRIDGE.

SECOND, IT CANNOT BE SAID THAT ONLY NOMINAL COMPENSATION WAS REQUIRED IN VIEW OF THE PRESENT CONDITION OF THE BRIDGE. PARAGRAPH 73 105 OF THE CORPS REGULATIONS, SUPRA, PROVIDES IN PART:

"*** IN PUBLICLY-OWNED ROADS AND UTILTIY SYSTEMS, AS WELL AS IN PRIVATELY -OWNED RAILROADS AND UTILITY SYSTEMS, THE FEDERAL COURTS HAVE HELD THAT THE LIABILITY OF THE UNITED STATES FOR SUCH ACQUISITION IS THE COST OF PROVIDING SUBSTITUTE FACILITIES WHERE SUBSTITUTE FACILITIES ARE, IN FACT, NECESSARY. CONVERSLY, WHERE IT CAN BE SHOWN THAT THERE IS NO NECESSITY FOR SUCH SUBSTITUTE ROADS, RAILROADS, OR UTILITY SYSTEMS, OR PORTIONS THEREOF, THE FEDERAL GOVERNMENT IS REQUIRED TO PAY ONLY NOMINAL CONSIDERATION. ***" WITH RESPECT TO THE INSTANT CASE, THE CORPS' REPORT TO US STATES:

"THERE IS NO QUESTION THAT FOR A RELATIVELY MINIMAL EXPENDITURE, THE COCHRANE BRIDGE COULD HAVE BEEN MADE USABLE. HAD THE RAILROAD DECIDED TO REPAIR THE BRIDGE, THE OBLIGATIONS WOULD HAVE BEEN EXACTLY THE SAME AS HAD EXISTED PRIOR TO THE PARTIAL COLLAPSE OF THE BRIDGE. AN ANALOGOUS SITUATION MIGHT BE THAT OF A $100,000 RESIDENCE WHICH IS RENDERED UNINHABITABLE BECAUSE OF A COMPLETE FAILURE OF ITS HEATING SYSTEM IN THE DEAD OF THE WINTER. ASSUMING THE SITUATION CAN BE REMEDIED, IT CANNOT BE SAID THAT THE HOUSE HAS NO VALUE. IN OUR OPINION THE VALUE OF THE HOUSE WOULD BE ITS VALUE BEFORE THE LOSS OF THE HEATING SYSTEM, LESS THE COST TO REPAIR. SO IN THIS CASE, IT WOULD BE THE VALUE OF A COMPLETELY SERVICEABLE BRIDGE LESS THE COST OF RESTORATION."

THUS IT IS CLEAR THAT THE CORPS WOULD HAVE BEEN LIABLE FOR THE COST OF AN ENTIRELY NEW REPLACEMENT BRIDGE, LESS THE COST OF RESTORING THE EXISTING BRIDGE, HAD THE PERMANENT REROUTING NOT BEEN PROPOSED BY THE RAILROAD OR APPROVED BY THE ICC.

PRESUMABLY THE RAILROAD FAVORED REROUTING FOR ITS OWN PURPOSES, THEREBY RENDERING A REPLACEMENT BRIDGE UNNECESSARY. HOWEVER, THIS CANNOT REASONABLY BE CONSIDERED A LACK OF NECESSITY FOR REPLACEMENT WITHIN THE MEANING OF PARAGRAPH 73-105 OF THE CORPS' REGULATIONS SINCE, AS NOTED PREVIOUSLY, ICC'S APPROVAL OF THE REROUTING WAS BASED LARGELY UPON CONSIDERATION OF COMPENSATION ALTERNATIVES FACING THE CORPS. RATHER, THE REROUTING HERE CONSTITUTES, IN EFFECT, THE SUBSTITUTE FACILITIES COMPENSABLE UNDER PARAGRAPH 73-105.

ON THE BASIS OF THE CALCULATIONS DISCUSSED PREVIOUSLY, THE CORPS CONCLUDED THAT COMPENSATING FRISCO FOR ABANDONMENT OF THE BRIDGE AND RELOCATION OF ITS ROUTE WOULD SAVE THE GOVERNMENT $3 MILLION OVER THE COST OF A REPLACEMENT BRIDGE. THIS CONCLUSION AND CONSEQUENT ADOPTION OF THE REROUTING ALTERNATIVE APPEAR REASONABLE UNDER THE FACTS PRESENTED AND FULLY CONSISTENT WITH CORPS REGULATIONS. THEREFORE, IT IS OUR OPINION THAT THE AGREEMENT ENTERED INTO WITH FRISCO PROVIDING FOR THE PURCHASE OF ITS CASEMENTS BASED ON THE COST OF EXPENSES IN UTILIZING THE TRACKAGE AND FACILITIES OF SOUTHERN IN LIEU OF USING THE COCHRANE BRIDGE, CONDITIONED UPON ABANDONMENT APPROVAL BY THE ICC, IS LEGALLY APPROPRIATE. FURTHER IN OUR VIEW, THE CORPS HAS AUTHORITY WITHIN THE AUTHORIZING ACT FOR THE WATERWAY TO MAKE THIS CHANGE FROM REPLACEMENT OF THE BRIDGE TO RELOCATION, SUBJECT TO THE APPROPRIATION CEILING, SINCE IT DOES NOT SUBSTANTIALLY ALTER THE PROJECT PURPOSES AND RESULTING BENEFITS USED AS A BASIS FOR THE PROJECT'S AUTHORIZATION BY THE CONGRESS.

WE TRUST THAT THE ABOVE IS RESPONSIVE TO YOUR REQUEST.