B-217866, OCT 30, 1985

B-217866, OCT 30, 1985

ARMY DEPARTMENT - CORPS OF ENGINEERS - RIVERS AND HARBORS PROJECTS - STREAMBANK STABILIZATION DIGEST: SECTION 707 OF PUB.L. NO. 95-624 ESTABLISHED THE MISSOURI NATIONAL RECREATION RIVER. IT PROVIDES THAT OPERATION AND MAINTENANCE OF STREAMBANK STABILIZATION STRUCTURES CONSTRUCTED UNDER SECTION 32 OF PUB.L. NO. 93-251 IS ASSUMED BY THE FEDERAL GOVERNMENT. SECTION 707 VESTED ADMINISTRATION OF THE RECREATIONAL RIVER IN THE SECRETARY OF THE INTERIOR AND DIRECTED HIM TO ENTER INTO A COOPERATIVE AGREEMENT WITH THE SECRETARY OF THE ARMY UNDER WHICH THE CORPS OF ENGINEERS WOULD OPERATE AND MAINTAIN THE BANK STABILIZATION WORKS. UNDER THE COOPERATIVE AGREEMENT THE ARMY WILL OPERATE AND MAINTAIN THE STRUCTURES AND SUBMIT BUDGET REQUIREMENTS. ACCORDINGLY, THE CORPS IS AUTHORIZED TO OPERATE AND MAINTAIN THE WORKS AS WELL AS SUBMIT APPROPRIATION REQUESTS FOR THESE ACTIVITIES.

THE HONORABLE J. JAMES EXON:

UNITED STATES SENATE

THIS IS IN RESPONSE TO YOUR LETTER OF MARCH 6, 1985, CONCERNING THE RESPONSIBILITIES OF THE U.S. ARMY CORPS OF ENGINEERS UNDER SECTION 707 OF PUB.L. NO. 95-625, ENACTED ON NOVEMBER 10, 1978, WHICH ESTABLISHED THE MISSOURI NATIONAL RECREATION RIVER. YOU INDICATE THAT THE ACT PROVIDES FOR FEDERAL RESPONSIBILITY FOR THE OPERATION AND MAINTENANCE OF ALL STREAMBANK STABILIZATION STRUCTURES INCLUDING THOSE CONSTRUCTED UNDER ANY OTHER ACT. WE ARE TOLD THAT SEVERAL BANK STABILIZATION PROJECTS WERE CONSTRUCTED IN THIS REACH OF THE MISSOURI RIVER UNDER SO CALLED SECTION 32 AUTHORITY. HOWEVER, ACCORDING TO THE CORPS OF ENGINEERS, THE DEPARTMENT OF THE INTERIOR SHOULD BE RESPONSIBLE FOR STREAMBANK STABILIZATION. CONSEQUENTLY, YOU REQUEST OUR ASSESSMENT OF THE CORPS' RESPONSIBILITY FOR OPERATION AND MAINTENANCE OF THE EXISTING SECTION 32 PROJECTS UNDER THE PROVISIONS OF PUB.L. NO. 95-625.

IN OUR OPINION, FOR THE REASONS STATED BELOW, THE ARMY CORPS OF ENGINEERS UNDER SECTION 707 OF PUB.L. NO. 95-625 HAS THE DUTY TO OPERATE AND MAINTAIN STREAMBANK STABILIZATION STRUCTURES CONSTRUCTED UNDER SECTION 32 OF PUB.L. NO. 93-251 WITHIN THE BOUNDARIES OF THE MISSOURI NATIONAL RECREATIONAL RIVER.

BACKGROUND

THE STREAMBANK EROSION CONTROL EVALUATION AND DEMONSTRATION ACT OF 1974, SECTION 32 OF PUB.L. NO. 93-251, 88 STAT. 21-22, MARCH 7, 1974, DIRECTED THE SECRETARY OF THE ARMY, ACTING THROUGH THE CHIEF OF ENGINEERS, TO ESTABLISH AND CONDUCT FOR A PERIOD OF 5 FISCAL YEARS A NATIONAL STREAMBANK EROSION PREVENTION AND CONTROL DEMONSTRATION PROGRAM. DEMONSTRATION PROJECTS, INCLUDING BANK PROTECTION WORKS, WERE TO BE CONDUCTED AT SITES WHICH INCLUDED CERTAIN REACHES OF THE MISSOURI RIVER. ID., SUBSECTION (C). NON-FEDERAL INTERESTS HAD TO OPERATE AND MAINTAIN THE COMPLETED PROJECTS. ID., SUBSECTION (D).

SECTION 707 OF THE NATIONAL PARKS AND RECREATION ACT OF 1978, 92 STAT. 3528, 3529, PUB.L. NO. 95-625, 16 U.S.C. SEC. 1274(A)(22), ADDED THE FOLLOWING NEW PARAGRAPH TO SECTION 3(A) OF THE WILD AND SCENIC RIVERS ACT:

"(22) MISSOURI RIVER, NEBRASKA, SOUTH DAKOTA.-- THE SEGMENT FROM GAVINS POINT DAM, SOUTH DAKOTA, FIFTY-NINE MILES DOWNSTREAM TO PONCA STATE PARK, NEBRASKA ***. SUCH SEGMENT SHALL BE ADMINISTERED AS A RECREATIONAL RIVER BY THE SECRETARY (OF THE INTERIOR). THE SECRETARY SHALL ENTER INTO A WRITTEN COOPERATIVE AGREEMENT WITH THE SECRETARY OF THE ARMY (ACTING THROUGH THE CHIEF OF ENGINEERS) FOR CONSTRUCTION AND MAINTENANCE OF BANK STABILIZATION WORK ***. IN ADMINISTERING SUCH RIVER, THE SECRETARY SHALL, TO THE EXTENT, AND IN A MANNER, CONSISTENT WITH THIS SECTION--

(A) PROVIDE *** (II) FOR THE OPERATION AND MAINTENANCE OF ALL STREAMBANK STABILIZATION STRUCTURES CONSTRUCTED IN CONNECTION WITH SUCH SEGMENT (INCLUDING BOTH STRUCTURES CONSTRUCTED BEFORE THE DATE OF ENACTMENT OF THIS PARAGRAPH AND STRUCTURES CONSTRUCTED AFTER SUCH DATE, AND INCLUDING BOTH STRUCTURES CONSTRUCTED UNDER THE AUTHORITY OF THIS SECTION AND STRUCTURES CONSTRUCTED UNDER THE AUTHORITY OF ANY OTHER ACT); ***"

A COOPERATIVE AGREEMENT WAS ENTERED INTO BY THE DEPARTMENT OF THE INTERIOR AND THE CORPS OF ENGINEERS ON JANUARY 4, 1980, FOR THE RECREATIONAL SEGMENT OF THE MISSOURI RIVER IN NEBRASKA AND SOUTH DAKOTA WHICH WAS ADDED TO THE NATIONAL WILD AND SCENIC RIVERS SYSTEM. UNDER THE AGREEMENT BOTH DEPARTMENTS ARE TO CONFER ON BUDGET ALLOCATIONS REQUIRED TO CARRY OUT THE PURPOSES OF THE ACT. THE SECRETARY OF THE INTERIOR (ACTING THROUGH THE ASSISTANT SECRETARY FOR FISH AND WILDLIFE AND PARKS) IS TO ADMINISTER THE DESIGNATED SEGMENT AS A RECREATIONAL RIVER UNDER THE PROVISIONS OF THE ACT, AND IS TO SUBMIT BUDGET REQUIREMENTS THROUGH NORMAL DEPARTMENTAL CHANNELS.

THE SECRETARY OF THE ARMY (ACTING THROUGH THE CHIEF OF ENGINEERS) IS TO SUBMIT BUDGET REQUIREMENTS FOR OPERATIONS, MAINTENANCE AND REPLACEMENT OF FEATURES AND FACILITIES; NOTIFY THE DEPARTMENT OF THE INTERIOR OF CONGRESSIONAL BUDGET HEARINGS ON THE RECREATIONAL RIVER SO THAT INTERIOR WILL BE ABLE TO TESTIFY; AND, SUBJECT TO THE AVAILABILITY OF APPROPRIATIONS, WILL DESIGN, CONSTRUCT, OPERATE AND MAINTAIN STREAMBANK STABILIZATION AND RIVER PRESERVATION STRUCTURES.

PUBLIC LAW 98-360, 98 STAT. 403, JULY 16, 1984, MADE APPROPRIATIONS FOR ENERGY AND WATER DEVELOPMENT FOR FISCAL YEAR 1985. TITLE I OF THE ACT PROVIDED THE CORPS OF ENGINEERS (CIVIL FUNCTIONS) WITH $1,305,000,000 FOR THE PRESERVATION, OPERATION, MAINTENANCE, AND CARE OF EXISTING RIVER AND HARBOR, FLOOD CONTROL, AND RELATED WORKS. THE CONFERENCE COMMITTEE REPORT ON PUB.L. NO. 98-360 (H.R. REP. NO. 866, 98TH CONG., 2D. SESS. 28, 34 (1984)), CONTAINED AN ALLOCATION OF "OPERATION AND MAINTENANCE, GENERAL" FUNDS OF $200,000 FOR THE MISSOURI NATIONAL RECREATION RIVER, NEBRASKA AND SOUTH DAKOTA.

YOUR STAFF FORWARDED COPIES OF CORRESPONDENCE WITH THE ACTING ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS) IN WHICH HE INDICATED THAT BECAUSE OF THE INCORPORATION OF STREAMBANK STABILIZATION STRUCTURES INTO THE MISSOURI NATIONAL RECREATIONAL RIVER PROJECT, THOSE STRUCTURES CONSTRUCTED UNDER SECTION 32 AUTHORITY WERE AUTHORIZED FEDERAL MAINTENANCE. HE REFERRED TO AN ALLOCATION OF $200,000 INCLUDED UNDER OPERATION AND MAINTENANCE, GENERAL, IN THE CONFERENCE COMMITTEE REPORT ACCOMPANYING THE ENERGY AND WATER DEVELOPMENT APPROPRIATION ACT, 1985, FOR THE MISSOURI NATIONAL RECREATIONAL PROJECT. HOWEVER, IN HIS LETTER TO YOU DATED FEBRUARY 7, 1985, THE ACTING ASSISTANT SECRETARY STATED THE CORPS' POSITION THAT "IT IS INAPPROPRIATE TO ACCEPT MAINTENANCE RESPONSIBILITY FOR PROJECT OPERATION AND MAINTENANCE IN ADVANCE OF FEDERAL FUNDING PROJECT CONSTRUCTION." (SINCE THE ISSUE WAS FUNDING FOR THE MAINTENANCE OF PREVIOUSLY CONSTRUCTED PROJECTS, WE DO NOT UNDERSTAND THE BASIS FOR THIS VIEW.) NEVERTHELESS, IN LIGHT OF THE ALLOCATION PROVISION IN THE CONFERENCE COMMITTEE REPORT, HE STATED THAT THE $200,000 WAS BEING ALLOCATED ON A ONE-TIME BASIS FOR THE MAINTENANCE WORK.

IN RESPONSE TO OUR REQUEST FOR THE VIEWS OF THE ARMY, THE ACTING ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS) PROVIDED US WITH THE FOLLOWING STATEMENT:

"IN EXAMINING THE STATUTES IT IS CLEAR *** THAT THE CORPS HAS NO STATUTORY OBLIGATION TO OPERATE AND MAINTAIN THE FACILITIES DEVELOPED UNDER SECTION 32 OF THE WATER RESOURCES DEVELOPMENT ACT OF 1974 (P.L. 93-251). UNDER SECTION 707 OF THE AMENDMENTS TO THE WILD AND SCENIC ACT (P.L. 93-624), THE SECRETARY OF THE INTERIOR IS RESPONSIBLE FOR PROVIDING FOR THE OPERATION AND MAINTENANCE OF THE STRUCTURES BUILT UNDER SECTION 32 OF P.L. 93-251, AS WELL AS ANY STRUCTURES BUILT UNDER P.L. 99-624. PUBLIC LAW 95-624 CLEARLY ANTICIPATES THAT THE CORPS WILL BE THE VEHICLE THROUGH WHICH THIS RESPONSIBILITY WILL BE CARRIED OUT, BUT THE STATUTE ITSELF IMPOSES NO DIRECT OBLIGATION ON THE CORPS. IN FURTHERANCE OF THESE RESPONSIBILITIES THE CONGRESS HAS DESIGNATED IN THE REPORT ACCOMPANYING THE 1985 ENERGY AND WATER DEVELOPMENT APPROPRIATION ACT, $200,000 FOR OPERATION AND MAINTENANCE, WHICH HAS BEEN MADE AVAILABLE TO THE MISSOURI RIVER DIVISION."

ANALYSIS

IN 1978, A SEGMENT OF THE MISSOURI RIVER IN NEBRASKA AND SOUTH DAKOTA, WAS DESIGNATED AS A NATIONAL RECREATIONAL RIVER BY SECTION 707 OF THE NATIONAL PARKS AND RECREATION ACT. BEFORE THAT, UNDER SECTION 32 OF THE STREAMBANK EROSION CONTROL EVALUATION AND DEMONSTRATION ACT OF 1974, BANK PROTECTION WORKS WERE CONSTRUCTED BY THE ARMY CORPS OF ENGINEERS WITH LOCAL NON-FEDERAL ENTITIES AGREEING TO OPERATE AND MAINTAIN THE PROJECTS UPON COMPLETION. BY VIRTUE OF SECTION 707, THE FEDERAL GOVERNMENT HAS ASSUMED RESPONSIBILITY FOR OPERATION AND MAINTENANCE OF THE STRUCTURES WHICH ARE LOCATED WITHIN THE BOUNDARIES OF THE MISSOURI NATIONAL RECREATIONAL RIVER.

SECTION 707 STATES THAT THE SECRETARY OF THE INTERIOR SHALL ADMINISTER THIS SEGMENT OF THE MISSOURI RIVER AS A RECREATIONAL RIVER AND THAT HE "SHALL" ENTER INTO AN AGREEMENT WITH THE CORPS OF ENGINEERS TO INCLUDE CONSTRUCTING AND MAINTAINING BANK STABILIZATION WORKS. IN EXPLAINING SECTION 707, SENATOR MCGOVERN, A PRINCIPAL SUPPORTER OF THE PROVISION, STATED AS FOLLOWS:

"FIRST OF ALL, THIS AMENDMENT AUTHORIZES THE SECRETARY OF THE INTERIOR TO ENTER INTO A COOPERATIVE AGREEMENT WITH THE SECRETARY OF THE ARMY CONCERNING A MANAGEMENT PLAN FOR THIS STRETCH OF THE MISSOURI. THIS IS NECESSARY BECAUSE IT IS THE SECRETARY OF THE INTERIOR WHO IS NORMALLY RESPONSIBLE FOR ADMINISTRATION OF THE WILD AND SCENIC RIVERS ACT. YET, IN THIS INSTANCE, THE RIVER'S ROUTINE MANAGEMENT IS AND SHOULD BE THE RESPONSIBILITY OF THE CORPS OF ENGINEERS.

"THE MANAGEMENT PLAN IS TO PROVIDE FOR, BUT NOT BE LIMITED TO, A PROGRAM FOR CONSTRUCTION AND MAINTENANCE OF BANK STABILIZATION WORK AND RECREATIONAL DEVELOPMENT. THE SECRETARY OF THE INTERIOR MAY ADDITIONALLY DELEGATE DAY-TO-DAY MANAGEMENT RESPONSIBILITY FOR THE RECREATIONAL RIVER DEVELOPMENT TO THE CORPS AS PART OF THE PLAN. HE WOULD HAVE THIS RIGHT AND I ASSUME HE WILL SO DELEGATE IT." (124 CONG. REC. 36204 (1978)).

TO IMPLEMENT SECTION 707, THE DEPARTMENTS OF THE INTERIOR AND OF THE ARMY SIGNED THE AGREEMENT DESCRIBED ABOVE WHICH SET FORTH THE TERMS AND CONDITIONS OF THEIR COOPERATIVE RESPONSIBILITY.

OUR READING OF THE LEGISLATIVE HISTORY OF SECTION 707 SHOWS A LEGISLATIVE FRAMEWORK UNDER WHICH THE GENERAL DIRECTION OF THE MISSOURI NATIONAL RECREATIONAL RIVER WOULD RESIDE IN THE INTERIOR DEPARTMENT BUT THE DAY-TO- DAY MANAGEMENT WOULD BE VESTED IN THE CORPS OF ENGINEERS. THIS IS PARTICULARLY EVIDENT AS TO THE BANK STABILIZATION WORKS, WHICH WERE CONSTRUCTED BY THE CORPS AND ARE WITHIN THE SCOPE OF ITS SPECIAL COMPETENCY. IN THIS CONTEXT, THE STATUTORY COMMAND TO INTERIOR TO EXECUTE AN AGREEMENT WITH THE CORPS FOR MAINTENANCE OF BANK STABILIZATION WORKS AND THE RESULTING AGREEMENT ESTABLISH THE CORPS OF ENGINEERS' RESPONSIBILITY FOR THESE PURPOSES.

ON THIS BASIS, A CORPS REQUEST FOR APPROPRIATIONS FOR THE COSTS OF OPERATION AND MAINTENANCE OF STREAMBANK STABILIZATION WORKS WITHIN THE MISSOURI NATIONAL RECREATIONAL RIVER WOULD BE UNOBJECTIONABLE. INDEED, THE COOPERATIVE AGREEMENT CONTEMPLATES BUDGET SUBMISSIONS BY THE SECRETARY OF THE ARMY FOR THESE PURPOSES. THE APPROPRIATIONS COMMITTEES OF EACH HOUSE OF THE CONGRESS INCLUDED A RECOMMENDATION FOR THE EXPENDITURE OF $200,000 FOR OPERATION AND MAINTENANCE FOR THE RECREATIONAL RIVER WITHIN THE CORPS OF ENGINEERS' APPROPRIATION UNDER THE ENERGY AND WATER DEVELOPMENT APPROPRIATION ACT FOR FISCAL YEAR 1985. SEE H.R. REP. NO. 755, 98TH CONG. 2D SESS. 45 (1984); S. REP. NO. 502, 98TH CONG., 2D SESS. 59 (1984). THESE REPORTS PRESUMABLY WERE FOUNDED ON THE UNDERSTANDING THAT THE CORPS IS PROPERLY AUTHORIZED TO DO THE WORK AND THAT UTILIZATION OF THE CORPS' APPROPRIATION WAS CALLED FOR.

THE CHIEF COUNSEL OF THE CORPS OF ENGINEERS AS REFLECTED IN THE ARMY'S REPLY TO US BELIEVES THAT THE CORPS HAS "NO STATUTORY OBLIGATION" TO OPERATE AND MAINTAIN THE SECTION 32 FACILITIES AND THAT "THE STATUTE ITSELF IMPOSES NO DIRECT OBLIGATION ON THE CORPS." THIS IS TOO NARROW A VIEW BECAUSE IT DOES NOT GIVE PROPER WEIGHT TO THE LEGISLATIVE INTENTION TO MAKE THE CORPS RESPONSIBLE FOR THE FEDERAL OPERATION AND MAINTENANCE OF THE WORKS IS CONSTRUCTED. EVEN THOUGH SECTION 707 DOES NOT IN SO MANY WORDS ASSIGN THESE TASKS TO THE CORPS, THIS END IS ACHIEVED BY REQUIRING THE INTERIOR SECRETARY TO CONTRACT WITH THE ARMY SECRETARY FOR THESE DUTIES. WHILE ONE MAY ARGUE THAT THE DUTIES RESULT FROM THE AGREEMENT AND NOT FROM THE STATUTE, AS THE CHIEF COUNSEL APPEARS TO DO, THE CONTRACTUAL DUTIES ARE IN FURTHERANCE OF THE STATUTE.

IT APPEARS THAT UNDERLYING THE CHIEF COUNSEL'S OBJECTIONS IS A PREFERENCE ON THE PART OF THE CORPS TO HAVE THE OPERATION AND MAINTENANCE OF THE SECTION 32 FACILITIES FUNDED FROM INTERIOR RATHER THAN CORPS OF ENGINEERS APPROPRIATIONS. UNDER SECTION 707 THE DEPARTMENT OF THE INTERIOR COULD PROPERLY REQUEST APPROPRIATIONS WHICH WOULD THEN BE MADE AVAILABLE TO THE CORPS. HOWEVER, UNDER THE COOPERATIVE AGREEMENT THE CORPS, WHICH WILL DO THE WORK, IS TO MAKE THE BUDGET REQUESTS FOR THESE PURPOSES.

CONCLUSION

IT IS OUR VIEW THAT THE ARMY CORPS OF ENGINEERS UNDER SECTION 707 OF PUB.L. NO. 95-625 HAS THE DUTY TO OPERATE AND MAINTAIN STREAMBANK STABILIZATION STRUCTURES CONSTRUCTED UNDER SECTION 32 OF PUB.L. NO. 93 251 WITHIN THE BOUNDARIES OF THE MISSOURI NATIONAL RECREATIONAL RIVER.

UNLESS YOU NOTIFY US OTHERWISE, THIS OPINION WILL BE AVAILABLE FOR DISTRIBUTION AFTER 30 DAYS.